Jackson v Transport Accident Commission
[2023] VCC 806
•24 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02826
| BEN DAVID JACKSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 April 2022 | |
DATE OF JUDGMENT: | 24 May 2023 | |
CASE MAY BE CITED AS: | Jackson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 806 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident – serious injury application – injury to the low back – pain and suffering – pecuniary disadvantage – credibility – whether consequences “serious”
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Transport Accident Commission v Zepic [2013] VSCA 232; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Haidar v Transport Accident Commission [2016] VSCA 182; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hooley v Transport Accident Commission [2019] VSCA 263; Abbas v Transport Accident Commission [2015] VSCA 217; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Tavares v Tavares (2003) 6 VR 577; O’Donnell v Reichard [1975] VR 916; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Thapa v Transport Accident Commission (2021) 97 MVR 268; Sumbul v Melbourne All Toya Wreckers Pty Ltd (2006) VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to the plaintiff to commence a proceeding for the recovery of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis with Mr B Johnson | Shine Lawyers |
| For the Defendant | Mr W R Middleton KC with Ms S Bailey | Wisewould Mahoney |
Table of Contents
Introduction
Legal principles
Background and medical history
Circumstances of the collision
The plaintiff’s medical treatment following the collision
The Plaintiff’s medico-legal reports
Mr Thomas Kossmann, orthopaedic surgeon
Professor Stephen Davis, neurologist
Mr Garry Grossbard, orthopaedic surgeon
Dr Albert Kaplan, psychiatrist
Mr Michael Mazzocato, physiotherapist, Watsonia Physiotherapy and Clinical Pilates
Ms Francesca Minischetti, chiropractor, Islington & Clerkenwell Chiropractic & Complementary Health Clinics
The Defendant’s medico-legal reports
Mr Damon Simmons, consultant orthopaedic surgeon
Witnesses and evidence
Issues and submissions
Plaintiff’s submissions
Defendant’s submissions
What injury did the Plaintiff sustain in the transport accident?
Is the Plaintiff’s back injury a “long-term” injury?
Credit
Was the impact of the collision more serious than the Plaintiff claimed?
Was the level of pain experienced by the Plaintiff inconsistent with the treatment he sought and the lack of prescription medication
Was the Plaintiff’s evidence in relation to his boxing exaggerated?
Was the Plaintiff’s evidence about his participation in football exaggerated?
Did the Plaintiff’s recollection about his earnings in London render his evidence unreliable?
Was the video surveillance footage consistent with the Plaintiff’s claimed levels of pain and disability?
Impairment consequences
Pain
Medication and medical treatment
Sleep
Mobility
Activities of daily living
Domestic activities
Boxing
Football
Driving
Social activities
Fitness
Psychological impact
Pecuniary disadvantage
Conclusion
HER HONOUR:
Introduction
1On 6 August 2018, Mr Jackson (“the plaintiff”) was driving his car which was stationary at a roundabout in Fitzsimmons Lane, Templestowe when he was struck from behind by a truck (“the transport accident”). As a result of the collision, the plaintiff sustained injuries to his back, which he claims have also affected his mental state.
2The issue to be determined at hearing was whether he had suffered a “serious injury”, being a serious long-term impairment or loss of function of his spine within the meaning of paragraph (a) of the definition in s93(17) of the Transport Accident Act 1986 (“the Act”), such that he should be granted leave pursuant to s93(4) of the Act to commence common law proceedings for damages.
Legal principles
3Section 93(4) of the Act provides:
“If–
(a)under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and
(b)the degree so determined is less than 30 per centum–
the person may not bring proceedings for the recovery of damages in respect of the injury unless–
(c)the Commission–
(i)is satisfied that the injury is a serious injury; and
(ii)issues to the person a certificate in writing consenting to the bringing of the proceedings; or
(d)a court, on the application of the person, gives leave to bring the proceedings.”
4Section 93(6) of the Act provides that:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
5The phrase “serious injury” is defined in s93(17) of the Act relevantly as follows:
“‘serious injury’ means–
(a) Serious long-term impairment or loss of a body function; or
… .”
6The question whether an injury is “serious” is assessed at the time the application is heard and is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak:[1]
“… To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
[1][1992] 2 VR 129 at 140 (per Crockett and Southwell JJ)
7As the Court of Appeal noted in Sutton v Laminex Group Pty Ltd,[2] “[T]he pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life”. The plaintiff’s experience of pain includes what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the plaintiff’s pain and what the objective evidence shows about the disabling effect of the pain.
[2] (2011) 31 VR 100 at paragraph [46]
8When assessing the plaintiff’s account of their experience of pain, the plaintiff’s credit will often be important. Exaggeration of symptoms or an inaccurate medical history, may mean a plaintiff’s account is of less weight.[3] Regardless of the veracity of the plaintiff’s evidence, reliable medical evidence must not be ignored because the plaintiff is or may not be credible.[4]
[3]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [145]; Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [91]; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at paragraph [33]; Haidar v Transport Accident Commission [2016] VSCA 182 at paragraph [32]; Petrovic v Victorian Workcover Authority [2018] VSCA 243 (“Petrovic”) at paragraph [74]
[4]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]; Petrovic at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51]
9To identify the disabling effect of pain includes an understanding of a plaintiff’s pre-injury and post-injury employment and activities. This is not a simple comparison. It is necessary to identify the extent to which pain limits a plaintiff’s physical functioning and enjoyment of life. Assessing loss of enjoyment of life requires consideration of various aspects of daily life. Impairment is concerned with what has been lost, although that is informed to an extent by what has been retained.[5]
[5] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 per Ashley JA
10An assessment of what the objective evidence shows about the disabling effect of pain has to be tempered by an understanding of the effects of stoicism.[6] Some plaintiffs may be more stoical than others. The injury suffered by a plaintiff is not to be viewed as any less serious merely because a plaintiff is prepared to endure pain to maintain a level of function. It would be wrong if “an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury”.[7]
[6] Sutton v Laminex Group Pty Ltd (supra) at paragraph [48]
[7] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3]
11For transport injuries, the consequences relating to both pain and suffering and pecuniary disadvantage are relevant in assessing the seriousness of an injury. They are assessed individually[8] and cumulatively.[9] If the consequences that relate to both pecuniary disadvantage and pain and suffering are such that, when the injury is judged by comparison to other cases in the range of possible impairments or losses, it can be fairly described as at least “very considerable”, then the applicant is entitled to succeed.
[8] Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph [37]
[9] Abbas v Transport Accident Commission [2015] VSCA 217
12When considering a plaintiff’s ability to work, if a plaintiff is young and their field of employment is permanently limited, the pecuniary disadvantage consequence can be very significant and may go beyond being a pain and suffering or loss of enjoyment consequence.[10]
[10] Hooley v Transport Accident Commission (supra) at paragraph [50]
Background and medical history
13The plaintiff was born in December 1993. At the time of the collision, he was twenty-five years of age. At the time of the hearing of the application he was twenty-eight years old.
14The plaintiff completed Year 12 of secondary school. After completing one year of a finance course at university, he found work in electrical maintenance before commencing an apprenticeship with Prolink Building Services Pty Ltd. When Prolink Building Services Pty Ltd became insolvent in 2019, the plaintiff became an employee of, and finished his apprenticeship with, the Lumina Group Pty Ltd.
15He subsequently worked for himself and sub-contracted to Switch Electrical and other companies as a qualified electrician.
16In February 2020, he commenced fulltime employment with the Nuvo Group. He worked there for around four months until he was stood down due to COVID-19 in June 2020. His employment was subsequently terminated.
17He remained out of work until he moved to London at the end of 2020.
18When he moved to London, he worked as a contractor performing work as a qualified electrician.
19The plaintiff had no relevant medical history and was not taking any medication prior to the transport accident.
Circumstances of the collision
20The impact of the truck colliding with the plaintiff’s car catapulted the plaintiff’s car into the roundabout, just missing another car. The plaintiff’s seat broke off its moorings. The plaintiff’s body was jolted forwards and backwards and flung about in the car. The plaintiff landed on his back. The roof of the plaintiff’s car popped up and the doors could not be opened. The car was a write-off.
The plaintiff’s medical treatment following the collision
21Following the collision, the plaintiff said he immediately felt pain in his back radiating into both of his lower limbs.
22The plaintiff was collected from the accident scene by his friend, James Stroumos (“Mr Stroumos”).
23Later that day he attended his general practitioner, Dr Naeem Chaudhry (“Dr Chaudhry”), at the Greensborough Medical Centre. The plaintiff reported he had “low back pain” and a “sore back”. Dr Chaudhry performed a clinical examination and diagnosed the plaintiff with a whiplash injury to his spine and neck.
24On 29 August 2018, the plaintiff had an initial consultation with Dr Stuart Robbins (“Dr Robbins”), at Gateway Osteopathy and Pilates. Dr Robbins’ notes recorded that since the accident the plaintiff had “gradually stiffened up more and more in the lx spine”. At work on 27 August 2018, he:
“… seized up walking up a set of stairs. Had never had back pain like this in the past. Some shooting pain in the buttock region that comes and goes, nothing ongoing and nil numbness or tingling. Nil bowel or bladder symptoms.”
25The plaintiff also recounted that he was getting a sensation of the left knee giving way a little bit at times. Dr Robbins suspected “mild disc injury lx spine.” He performed soft tissue therapy and arranged a review the following Monday.
26The plaintiff continued to experience back pain. He returned and saw Dr Shafiul Azam (“Dr Azam”) at the Greensborough Medical Centre on 31 August 2018 complaining of “upper lumbar to lower lumbar pain”. He also had “stiffness to the back”. Dr Azam prescribed Naprosyn SR tablet 1000 milligrams, one daily, and referred the plaintiff for an x-ray of his lumbosacral spine, a CT scan and physiotherapy treatment at Watsonia Spinal & Sports Physiotherapy.
27On Monday 3 September 2018, the plaintiff returned to see Dr Robbins for review. He reported his back had started to seize up again and that he had consulted his general practitioner the previous Friday complaining of right mid to upper lumbar region pain. His general practitioner had prescribed stronger anti-inflammatories and referred the plaintiff for lumbar spine x-rays. Dr Robbins was of the view the plaintiff had a disc injury. However, he suggested it might only have been facet joint dysfunction. He performed soft tissue therapy and taped the plaintiff’s spine.
28On 5 September 2018, the plaintiff underwent an x-ray of his lumbosacral spine. The x-ray lumbosacral spine revealed there was a transitional lumbosacral junction with sacralisation of L5 bilaterally, with pseudo articulation with the sacrum. The x-ray did not identify any fracture, pars defect or bony lesions which might have provided explanation for the plaintiff’s pain. The sacroiliac joints were unremarkable and disc heights were within normal limits.
29The plaintiff consulted Dr Robbins again on 6 September 2019. Taping the plaintiff’s spine seemed to have helped and the plaintiff was noted to be “feeling much better overall”. There was “nil radicular pain mainly local pain”. His view was the plaintiff had a facet sprain; although he noted that it was “flexion sensitive and may also be an annular tear of disc”. Dr Robbins performed soft tissue therapy and suggested further weekly review.
30When the plaintiff saw Dr Azam again on 13 September 2018 to discuss the findings of the x-ray, Dr Azam noted the plaintiff “does have ? shooting pain bilat” and identified he had some weakness in his knees. He referred the plaintiff for an MRI scan of the lumbosacral spine.
31On the same day, the plaintiff attended Michael Mazzocato (“Mr Mazzocato”), physiotherapist, at Watsonia Physiotherapy and Clinical Pilates, for an initial physiotherapy consultation. He had pain around his lower back and top right buttock. He appeared to have no pain in his lower limbs, though he complained of his knees giving way.
32The plaintiff gave a history to Mr Mazzocato of his car having been “rear-ended at 60km” while he was stationary. Mr Mazzocato recorded that the seat collapsed and the plaintiff hyper-extended his lumbar spine. The plaintiff was initially stiff and sore and had “2/7 off work”, before his pain worsened.
33Mr Mazzocato diagnosed facet stiffness. He also suspected a mild disc injury in the lumbar spine. The plaintiff was to have an MRI scan of the lumbosacral spine performed.
34On 18 September 2018, the plaintiff underwent an MRI scan of the lumbosacral spine. The MRI scan report noted bilateral lower limb weakness and radicular pain. Each of the distal spinal cord, the conus medullaris, and the cauda equina had normal appearances. There was no injury to the anterior longitudinal ligament, intervertebral discs, posterior longitudinal ligament, ligamentum flavum or interspinous ligament. There was no traumatic spondylolisthesis or abnormal widening of the intervertebral disc or interspinous spaces. There were no fractures and there was normal alignment of the facet joints.
35Consistent with the x-ray, there was transitional anatomy at the lumbosacral junction with lumbarisation of the S1 vertebra. The MRI scan report also identified that there were multilevel shallow disc bulges which were affecting the lumbosacral spine, notably minor shallow disc bulges at L2-3, L3-4, and a shallow disc bulge at L4-5 without spinal canal narrowing or compromise of the exiting nerve roots. At the L4-5 level, there was a possible minor abutment of the traversing L5 nerve roots. At the L5-S1 level on the background of shallow disc bulge there was a focal central disc protrusion and a posterior annular fissure. There was no spinal canal narrowing and no compromise of the exiting L5 nerve root or the traversing S1 nerve roots. However, the radiologist noted in the body of the report, but not the summary, that there was a posterior annular fissure.
36The report concluded that there was no evidence of injury to the lumbosacral spine. Multi-level shallow disc bulges affected the lumbosacral spine with no areas of lumbosacral spinal canal narrowing. There was possible minor abutment of the traversing L5 nerve roots at the L4-L5 level.
37On 18 September 2018, the plaintiff attended Dr Jacqueline Green (“Dr Green”) at Gateway Osteopathy and Pilates.
38On 20 September 2018, the plaintiff attended Ms Henrietta Paviluppillai (“Ms Paviluppillai”), physiotherapist, at Watsonia Physiotherapy and Clinical Pilates.
39On 12 October 2018, the plaintiff attended Dr Julie Doswell (“Dr Doswell”) at the Camberwell Junction Medical Centre. Dr Doswell recorded that the plaintiff had hurt his mid-thoracic/cervical spine and prescribed Mersyndol nocte and Naprosyn SR 100 milligrams.
40The plaintiff consulted Dr Doswell again on 16 October 2018.
41The plaintiff attended further physiotherapy consultations with Ms Paviluppillai on 2, 8, 11, 15 18 October 2018 and 27 November 2019, and with Mr Mazzocato on 4, 9, 15, 17, 30 April, 7 May, 19 and 27 August, 3, 10 and 17 September, and 22 October 2019.
42The plaintiff also attended further osteopathy consultations at Gateway Osteopathy and Pilates with Dr Robbins on 4 October 2018 and 24 July 2019, Dr Dana Robbins on 31 October 2018, Dr Green on 29 November 2018 and Dr Daniel Mason on 14 January 2019.
43On 26 August 2019 and 22 September 2019, the plaintiff saw Dr Doswell again. Dr Doswell referred the plaintiff to other health practitioners, provided him with a physiotherapy program, and prescribed Feldene.
44The plaintiff saw Mr Mazzocato for the last time on 22 October 2019.
45On 11 October 2020, the plaintiff moved to London.
46On 12 October 2021, the plaintiff began consulting Dr Francesca Minischetti (“Dr Minischetti”), chiropractor, in London.
47On 20 January 2022, the plaintiff had an initial appointment with the Ritchie Street Group Practice in London.
The Plaintiff’s medico-legal reports
Mr Thomas Kossmann, orthopaedic surgeon
48Mr Kossmann examined the plaintiff on 24 October 2019. The plaintiff brought with him to the examination, the x-ray of his lumbar spine taken on 5 September 2019, the CT brain dated 31 August 2018, the MRI scan of the lumbosacral spine dated 18 September 2018 and the MRI scan of the cervical and thoracic spine dated 22 October 2018.
49A further examination of the plaintiff occurred on 25 January 2022. Mr Kossmann was provided with the TAC Claim Form, the VicPol accident report dated 25 July 2019, the radiology reports previously provided, the clinical records of the Camberwell Junction Medical Centre dated 16 July 2019 and the records of Watsonia Physiotherapy and Clinical Pilates.
50Mr Kossmann prepared three reports dated respectively 24 October 2019, 25 January 2022, and 21 April 2022.
51In his first report, Mr Kossmann detailed the plaintiff’s medical history. He noted the findings of his physical examination. Mr Kossmann diagnosed lumbar spondylosis in the form of shallow disc bulges at the L2-3, L3-4 and L4-5 levels, possible minor abutment of the traversing L5 nerve roots at the L4-5 level, a posterior annular fissure, and a focal central disc protrusion at the L5-S1 level with intermittent sciatica into both the plaintiff’s hamstrings and his left foot.
52Mr Kossmann’s opinion remained the same in his second report.
53Mr Kossmann’s third report provided his opinion on the plaintiff’s injury following consideration of the plaintiff’s affidavit affirmed 10 March 2022, and a document from Maurice J Kerrigan dated 11 March 2022, together with six surveillance video excerpts of the plaintiff. Neither the plaintiff’s affidavit affirmed 10 March 2022, nor the surveillance video clips changed Mr Kossmann’s opinion as outlined in his earlier reports.
Professor Stephen Davis, neurologist
54On 28 October 2019, Professor Davis undertook a medical assessment of the plaintiff at the joint request of the solicitors for the plaintiff and the defendant. He subsequently prepared three reports dated 21 October 2019,[11] 1 February 2022 and 22 April 2022. The report dated 1 February 2022 followed a telehealth interview with the plaintiff.
[11] It is likely there was an error in either the date of the report or the date of the assessment
55In his first report, Professor Davis took a history from the plaintiff of the transport accident, his initial consultation with his general practitioner and the initial radiological investigations undertaken. He noted the plaintiff had been off work completely for a month and then had five months of light duties.
56He took a history from the plaintiff of ongoing pain in the low back radiating to both legs but worse in the left leg down to the foot. The plaintiff complained of intermittent numbness down the sides of the lower legs and in and on the sole of his left foot. His knees could give way. He had pain in the neck and reduced “clarity of thinking.” Working in awkward positions and prolonged sitting worsened his back pain.
57Professor Davis opined the plaintiff had sustained a soft tissue type injury to the lumbar and cervical regions of his spine, but by the date of the examination, the plaintiff only retained lumbar spine symptoms. The plaintiff described sciatic-type radiation of pain for which Professor Davis said there was no objective neurological deficit. Although there was lower back pain, some restriction in lumbar movement and some sciatic-type pain, there were no objective neurological abnormalities. Further, the changes on the MRI of the lumbosacral spine were mild degenerative changes only. There was a degree of psychological impairment which explained the plaintiff’s cognitive symptoms. If the plaintiff experienced any pain it was caused by a soft-tissue injury only; or by the mild degenerative changes seen on the MRI of the lumbosacral spine at the L5-S1 level, or by a degree of psychological impairment, and not the motor vehicle accident.
58In his second report, Professor Davis identified that a report from a general practice in Greater London, which the plaintiff had consulted via telehealth, indicated that as of 28 October 2021, the plaintiff was still suffering from constant low back pain. The pain radiated to both legs. It was worse in the left leg down to the foot and the plaintiff found his knees gave way. He had fallen. The plaintiff experienced intermittent numbness down the sides of his lower legs as well as numbness and tingling in the sole of his left foot and hamstring region. He had lesser issues in his right hip. His back pain was worse than his leg pain and he occasionally experienced sharp pain in his low back.
59On examination, the plaintiff had restricted lumbar flexion. There were no neurological abnormalities. He had normal tone, power, and reflexes in his lower limbs.
60Professor Davis’ opinion remained the same, that the plaintiff had sustained a soft-tissue injury, some mild degenerative changes, or possibly some psychological overlay. He also considered the plaintiff had some disc bulges which could not “be specifically related to the traffic accident and could be age-related constitutional changes”. He concluded “based on the history and various other reports there appeared to be no change in [the plaintiff’s] condition.”
61He observed that when the plaintiff had been examined two years before, his pain had been “predominantly low back pain”, with some degree of referred sciatic-type pain and sensory disturbance in the left leg. There were no objective neurological findings. There were mild degenerative changes on an MRI scan of the lumbosacral spine. There were disc bulges, but those could not be related specifically to the traffic accident, and he thought they could have been age-related constitutional changes. He considered there was a degree of psychological impairment. Overall, Professor Davis considered there was no major deterioration or improvement since he had last seen the plaintiff, save for a “slight deterioration” in his pain level.
62Professor Davis’ third report provided an updated opinion following review of six video surveillance excerpts of the plaintiff undertaking a range of routine daily activities in London, including walking, cycling, attending coffee shops and restaurants and his place of work. Professor Davis observed that the plaintiff appeared comfortable and unrestricted in those activities and appeared to be “functioning quite well”. In the videos, the plaintiff did not lift heavy weights, bend, or twist his back, engage in strenuous tasks, or tasks performed in a confined space. He was able to carry a box of an indeterminate weight without restriction and he managed to carry a backpack.
63Professor Davis opined the plaintiff’s major problem was his low back pain. Because the plaintiff had “only mild degenerative changes on an MRI scan in the lumbosacral spine”, he did not think the plaintiff’s spondylitic changes could be specifically related to the accident.
64In his earlier reports, Professor Davis had noted some referred sciatic pain and sensory disturbance in the left leg. In the third report he suggested the plaintiff had no focal neurological signs, no evidence of radiculopathy and no evidence of specific disc injury.
65There was no indication for any surgical intervention or other specific treatment. When seen in 2019, the plaintiff had not been on any analgesic therapy, just occasional non-steroidal anti-inflammatory medications. He said that one “would normally expect a reasonably good prognosis in this context”.
Mr Garry Grossbard, orthopaedic surgeon
66Mr Grossbard examined the plaintiff on 8 December 2021 via zoom. He prepared a report dated 9 December 2021, and a further report dated 19 April 2022 following review of the plaintiff’s affidavit affirmed 10 March 2022, and after observing more than 35 minutes of surveillance video footage of the plaintiff.
67In his first report, Mr Grossbard took a history from the plaintiff and a description of the transport accident. The plaintiff explained that following the collision he did not attend work for the remainder of the week. When he returned to work his back locked up as he was getting out of the car, and he could not work for a further six to eight weeks. When he did return, he performed only light duties for six months.
68The plaintiff described back pain at the base of his spine which radiated up his back to his right hip laterally. Occasionally there was pain on the left side and sometimes the pain radiated down to the lateral side of his foot where there was numbness which lasted for a variable length of time. The plaintiff complained that his knees gave way.
69The plaintiff described his back pain as constant but of varying intensity. He said it was worst in the mid-lumbar area. It was experienced as a tightness. Exacerbations included shooting pains and back spasms which could last from five minutes to one to two days. The hip pain was on the lateral side of the hip and was present once or twice a week lasting from minutes to hours. The plaintiff said he got relief when he lay down, but it was still painful to lie on his right side.
70The plaintiff was able to stand on his heels and toes and get up from a squatting position. His forward flexion was described by Mr Grossbard as being “markedly restricted, with his hands only reaching to mid-thigh level.” There was almost normal extension of the lumbar spine. Lateral flexion was mildly dysmetric and was greater to the left than to the right.
71Mr Grossbard examined radiological studies in electronic format. He opined the plaintiff suffered from soft tissue injuries to his lumbar spine. There was significant injury to the L4-5 level with mild degenerative change and associated annular tearing. The plaintiff had right hip pain which had the appearance of a trochanteric bursitis based on the site of symptomatology.
72In his second report, Mr Grossbard noted the plaintiff was able to undertake full-time work as an electrician, although the plaintiff’s duties had been modified.
73The plaintiff had experienced episodic exacerbations of pain which, on occasion, persisted for weeks in duration.
74Having reviewed the video surveillance footage, Mr Grossbard’s opinion did not change. He opined that the footage had been taken over a few days and did not reflect the episodic nature of the plaintiff’s back symptoms or his complaints over time.
Dr Albert Kaplan, psychiatrist
75Dr Kaplan examined the plaintiff on 11 November 2019 at the joint request of the plaintiff and the defendant’s solicitors. He prepared a joint report dated 14 November 2019.
76Following provision of the plaintiff’s affidavit affirmed 10 March 2022 and the report from Maurice J Kerrigan (Investigators) dated 11 March 2022, Mr Kaplan prepared a supplementary report for Shine Lawyers dated 22 April 2022.
77In his first report, Mr Kaplan took a history of the circumstances of the plaintiff’s accident, including his immediate experience of pain in his back, and his resulting treatment. He noted the plaintiff took two to three days off work and subsequently took a further month off. When he returned to work, he performed light duties for six months before resuming his normal duties. He avoided heavy lifting or working in awkward positions, but otherwise generally coped.
78Dr Kaplan noted the plaintiff had become anxious and depressed in 2017 but following counselling prior to the transport accident appeared to have begun functioning effectively.
79Following the transport accident, the plaintiff redeveloped feelings of anxiousness and depression and consulted a psychologist for four or five months and underwent counselling because he continued to struggle emotionally. Mr Kaplan considered his condition had not resolved and he had traumatisation features.
80Before the accident, the plaintiff drank six to twelve stubbies of beer some weekends. After the accident, his alcohol consumption increased, and on some weekends, he drank to inebriation.
81In relation to his low back injury, the plaintiff told Dr Kaplan he experienced constant low back pain which fluctuated in severity and radiated down both legs, more on his left side. Occasionally, his legs gave way. The plaintiff’s pain became aggravated by sitting, standing, or walking for prolonged periods, and with bending and lifting. Dr Kaplan recorded that the plaintiff’s condition was not improving.
82Dr Kaplan diagnosed an adjustment disorder with mixed anxiety and depressed mood which was in partial remission. The plaintiff had features of post-traumatic stress disorder and chronic pain. It was difficult to predict the prognosis of the plaintiff’s adjustment disorder. His psychiatric condition had improved, and it was thought he would continue to improve with the passage of time, but his chronic pain was likely to continue to impact his mood.
83From a psychiatric perspective, the plaintiff did not have any incapacity for work.
84In his second report, Mr Kaplan commented on the video surveillance footage which he said did not lead him to alter the opinion he expressed in his first report.
Mr Michael Mazzocato, physiotherapist, Watsonia Physiotherapy and Clinical Pilates
85Mr Mazzocato prepared a report dated 16 January 2020. In his report, Mr Mazzocato noted the plaintiff first presented to Watsonia Physiotherapy and Clinical Pilates on 13 September 2018. He gave a history of having been involved in a transport accident on 6 August 2018, following which he had two days off work. When he returned to work, he reported worsening pain, decreased range of movement and muscular spasms. He commenced light duties on 11 September 2018 after two weeks off work.
86Upon examination, the plaintiff reported bilateral pain of five out of ten at rest in his lower thoracic and lumbar spine. He reported his knees buckling and giving way. He experienced restriction in active movement of his lumbar spine with extension and lateral flexion to the left. He had been diagnosed with bilateral lower thoracic and upper lumbar facet tightness, and an MRI scan taken on 18 September 2018 concluded that multilevel shallow disc bulges were affecting the lumbosacral spine. There was also the possibility of minor abutment of the traversing L5 nerve roots.
87The plaintiff had developed chronic and constant low back pain. The pain limited his ability to stand or sit. He had a restricted ability to lift, which impacted his work. His ability to socialise was also affected.
88The plaintiff received manual therapy and a home exercise program. He later transitioned to clinical Pilates.
Ms Francesca Minischetti, chiropractor, Islington & Clerkenwell Chiropractic & Complementary Health Clinics
89Ms Minischetti prepared an undated report. She noted the plaintiff presented to the Islington & Clerkenwell Chiropractic and Complementary Health Clinic on 12 October 2021 with chronic, moderate to severe lower back and right leg pain. His symptoms were exacerbating. Ms Minischetti examined the plaintiff and reviewed the MRI scan conclusions from September 2018 which had concluded there was no evidence of injury to the lumbosacral spine. There were multilevel shallow disc bulges affecting the lumbosacral spine, and at the L4-L5 level there was a possible minor abutment of the traversing L5 nerve roots.
90Ms Minischetti considered the plaintiff’s prognosis remained guarded. His treatment plan was incomplete.
The Defendant’s medico-legal reports
Mr Damon Simmons, consultant orthopaedic surgeon
91Mr Simmons examined the plaintiff in London on 16 March 2021. He prepared a medical report dated 19 March 2021.
92He took a history of the transport accident from the plaintiff. The plaintiff’s vehicle had been struck from behind by a truck, which had propelled it forwards and backwards. The driver’s seat collapsed and caused the plaintiff to fall onto his back. He said the plaintiff estimated the speed limit of the road at “around 60 km per hour”.
93The plaintiff reported having pain in his lower back straight away as well as neck symptoms.
94The plaintiff described attending his general practitioner that day and being diagnosed with whiplash to his neck and back. He was given analgesia. He had six weeks off work and then he was on light duties for another six months. He underwent physiotherapy, as well as chiropractic and osteopathic treatment. Scans were taken which revealed disc protrusions.
95The plaintiff considered his lower back to be his main problem. He experienced pain and he had symptoms 95 per cent of the time. Three or four times a week he said his back seized up and spasmed. The pain was debilitating.
96The plaintiff estimated his pain at three out of ten during the consultation with ten being the worst pain he had ever experienced. When his back seized up his pain sometimes increased to ten out of ten. It could stop him walking and his knees sometimes gave way.
97Once or twice a week he experienced sciatic-like symptoms in his left leg where the pain traversed the arch of his foot. At times the symptoms were experienced in both feet.
98On examination, the plaintiff weighed 105 kilograms. He walked normally and could stand on tiptoes. He had normal spinal alignment and could forward flex to his knees, but he was reluctant to move further in case it aggravated his back. He could extend his spine without complaints of pain in his lower lumbar area, and he had no pain on flexion. There was no sign of any neurological deficit in relation to tone, power, sensation, and reflexes in the upper or lower limbs, although the plaintiff considered his left leg felt weaker. He had a positive Waddell’s test on compressing his shoulders. This caused him increased discomfort in his lower back.
99Mr Simmons referred to various documents provided to him including the plaintiff’s affidavit, a claim for compensation summary, an impairment application form, an incident report in respect of the road traffic accident dated 6 August 2018, an M & A investigations report dated 7 December 2020, and a Statement of John Roden. He also noted various radiological reports, including the x-ray and the MRI scan of the lumbosacral spine, both dated 5 September 2018.
100Mr Simmons reviewed various medical reports including reports from Professor Davis dated 21 October 2019, Mr Kossmann dated 24 October 2019, Dr Kaplan dated 14 November 2019, and Mr Mazzocato dated 16 January 2020. He also reviewed the clinical records of Watsonia Physiotherapy and Clinical Pilates, and Gateway Osteopathy.
101He noted the physiotherapy assessment on 13 September 2018. At that assessment the plaintiff had pain around his lower back and top right buttock. He had no pain in his lower limbs. The plaintiff said his knees gave way. The plaintiff had been diagnosed with facet stiffness and a disc injury.
102Mr Simmons queried the plaintiff’s suggestion that his knees gave way and was of the opinion there was “no evidence of any disc injury and his [the plaintiff’s] only reported disc issues in the spine [were] within normal constitutional range for his age and occupation”. He considered the plaintiff sustained a “whiplash associated disorder type lumbar sprain to the lower back. His MRI scan subsequently showed constitutional minor disc bulges consistent with his age.” Mr Simmons found no evidence of radiculopathy. In his opinion, there was no evidence of significant neural impingement in the back to account for the plaintiff’s sciatic symptoms.
103He expected the injury to the lower back and the lumbosacral symptoms to fully resolve within a period of eighteen to twenty-four months from the date of the injury. Symptoms beyond the point of recovery were likely to be postural and mechanical. There was no evidence of serious injury to the spine on MRI scanning, or clinically. Any ongoing problems with the plaintiff’s back were considered to be constitutional and not accident related.
104Mr Simmons was of the opinion there had been a psychological overlay in relation to the plaintiff’s ongoing problems.
105In his second report dated 28 February 2022, Mr Simmons opined that the effects on the plaintiff’s employment, domestic, social, recreational and personal life appeared reasonable.
Witnesses and evidence
106At the hearing, the plaintiff gave evidence and was cross-examined. He relied on four affidavits sworn by him on 31 March 2020, 21 December 2021, 10 March 2022 and 24 March 2022. He also relied on an affidavit of Gerry Murphy sworn 21 February 2022, an affidavit of Mr Stroumos sworn 21 February 2022 and an affidavit of Jonathon Harris (“Mr Harris”) sworn 21 February 2022. Extracts from the Plaintiff’s Amended Court Book dated 22 April 2022 were tendered by the plaintiff as Exhibit A including various medico-legal reports, reports from other health practitioners and an MRI scan of the lumbosacral spine dated 18 September 2019.
107The defendant tendered six video surveillance footage excerpts; extracts from the Defendant’s Amended Court Book containing medico-legal reports and reports from other health practitioners, and extracts from the Plaintiff’s Amended Court Book containing additional radiology reports and a summary of taxation returns.
108I have read all the tendered material. I will refer only to the parts of the tendered material relevant to my findings and to my path of reasoning.
Issues and submissions
Plaintiff’s submissions
109It was submitted on behalf of the plaintiff that first, the Court should find the plaintiff has suffered an injury to the lumbar spine, particularly at the L4-5 level and that the evidence of Mr Simmons that the lumbar spine injury had resolved should not be accepted.
110Second, the plaintiff was a witness of truth whose evidence as to his pain and suffering and/or pecuniary disadvantage consequences should be accepted.
111Third, the plaintiff had a serious long-term impairment. The consequences of his injury could be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’. After the transport accident, the plaintiff stopped boxing and playing football which were activities he previously enjoyed. He did Pilates’ core exercises and stretching to stabilise his back. He attended a psychologist and tried to deal with his back condition. He did not take prescription medication as it affected his stomach and digestive tract and/or made him feel sleepy and foggy. He took Paracetamol every second or third day. He was a stoic person.
Defendant’s submissions
112The defendant submitted the plaintiff had not suffered a serious injury.
113According to the defendant, the plaintiff was an unreliable historian who exaggerated his symptoms of pain. His impairment and pecuniary disadvantage consequences were not as serious as claimed. The objective medical material supported the conclusion the plaintiff’s back problems had resolved. There was no treating doctor’s report, other than the report from Dr Doswell whose opinion related only to the plaintiff’s cervical spine rather than to his lumbar spine. From 2019 there had been no prescriptions obtained by the plaintiff for two years. There had been no referrals to specialists. The plaintiff had been prescribed Voltarol on 29 October 2021 and still retained the box on 26 April 2022. Anything affecting the plaintiff was constitutional in nature or driven by psychological overlay.
114In terms of his consequences, the pain experienced by the plaintiff although constant varied in severity and was not significant enough for the injury to constitute a serious injury. The plaintiff is engaged in employment where he is earning more now than he was before the accident. He stopped playing football in 2011 and other than a few games in 2014, has not played seriously since. He did not have a serious aspiration to box competitively at the Commonwealth or Olympic Games, but even if boxing was important or substantial to the plaintiff, his inability now to box at the level to which he aspired is not a consequence that was at least very considerable. The plaintiff remains able to socialise. He can ride his bicycle. He can walk. He can go to the gym and punch a punching bag. He is able to perform chores at home. The suggestion he cannot cut his toenails is inconsistent with his retained sporting ability.
What injury did the Plaintiff sustain in the transport accident?
115On the basis of the x-ray and the MRI scan of the lumbosacral spine, Mr Kossmann diagnosed lumbar spondylosis in the form of shallow disc bulges at the L2-3, L3-4 and L4-5 levels; possible minor abutment of the traversing L5 nerve roots at the L4-5 level; a posterior annular fissure and focal central disc protrusion at the L5-S1 level with intermittent sciatica into both the plaintiff’s hamstrings and his left foot.
116The defendant was critical of Mr Kossmann’s diagnosis. It submitted Mr Kossmann had not provided his own opinion and his diagnosis was simply a repetition of what was in the MRI lumbosacral spine scan report. There was no critical analysis of the plaintiff’s history, imaging, and his clinical examination. Any symptomatology the plaintiff continued to exhibit was congenital in nature or was the result of psychological overlay.
117In support of this submission the defendant pointed to the fact there was no report from Dr Azam which supported the position the plaintiff had injured his lumbar spine in the collision. This was notwithstanding the plaintiff consulted Dr Azam in respect of low back pain, and Dr Azam referred him for an x-ray and an MRI scan of the lumbosacral spine. The MRI scan report identified lumbarisation rather than an injury to the plaintiff’s lumbar spine.
118The plaintiff said in cross-examination he stopped seeing Dr Azam because he felt he was not very thorough and did not pick up that the plaintiff had a serious back injury. The defendant challenged this explanation as being unsupported by the clinical notes.
119When the plaintiff attended the Greensborough Medical Centre on 6 August 2018, he saw Dr Chaudhry. He explained the circumstances of the accident to him, including that his car had just been rear ended by a truck. His memory was Dr Chaudhry did not prescribe any medication and sent him home.
120The plaintiff returned to the Greensborough Medical Centre on 31 August 2018, complaining of ongoing pain. He saw Dr Azam, who prescribed Naprosyn and requested an x-ray lumbosacral spine and a CT scan. He also referred the plaintiff to Watsonia Spinal & Sports Physiotherapy.
121The plaintiff later attended Watsonia Spinal & Sports Physiotherapy. The notes of that consultation are extensive. They are more detailed and comprehensive than the notes of the consultations the plaintiff had already had with Dr Chaudhry or Dr Azam, and arguably they are of greater assistance in ascertaining the nature and seriousness of the plaintiff’s back injury than the notes of any of the general practitioners.
122I consider that while a report from a treating general practitioner can be important, it is not always critical. This is a situation where I do not consider that the failure to produce a report from the Greensborough Medical Centre was significant. The plaintiff only attended the Greensborough Medical Centre for a short time. His attendances were at a time when preliminary investigations to ascertain the cause of his pain were ongoing and had only recently begun. Further, the consultations occurred before the MRI scan of the lumbosacral spine dated 18 September 2018 had been undertaken. Given each of those matters, I do not consider a report from Dr Azam would have been of great assistance.
123In any event, the results of the x-ray lumbosacral spine dated 5 September 2018, the MRI scan of the lumbosacral spine dated 18 September 2018, and the clinical records from the Greensborough Medical Centre, support the conclusion the plaintiff injured his lumbar spine in the collision.
124First, the plaintiff’s contemporaneous report to Dr Chaudhry was that he had been injured in a motor vehicle accident on the morning he attended the medical centre. He reported that his car had been struck by a truck at about 60 kilometres per hour while stationary at a roundabout. He had low back pain. He was feeling better but continued to have a sore back. There was no bruising or swelling over the lumbar region but the area over the plaintiff’s lumbar spine was a “bit painful”.
125Second, when the plaintiff attended the medical centre again on 31 August 2018 and saw Dr Azam, he continued to experience low back pain and stiffness to his back. He explained to Dr Azam the accident happened in early August 2018, and that since then he had experienced some shooting pain bilaterally to his buttocks. On examination he had upper to lower lumbar pain. He had attended one session with an osteopath and had been taking Voltaren Rapid. Dr Azam referred him for an x-ray for the purpose of excluding spondylolisthesis.
126Third, after the plaintiff had an x-ray of his lumbosacral spine, he consulted Dr Azam again on 13 September 2018. The purpose of that consultation was noted as “bilat LL pain FI”. The x-ray showed L5 lumbarisation bilaterally. The plaintiff continued to have shooting pain bilaterally and also had some weakness in the knees. The medical record included a note “he does have ? shooting pain bilaterally”. He was referred for an MRI scan of the lumbosacral spine.
127In my view, each of these matters supports the position the plaintiff injured his lumbar spine in the collision.
128The defendant relied upon a lack of reference in the notes made by Dr Doswell at the Camberwell Medical Centre on 12 October 2018 – the date the plaintiff first consulted Dr Doswell - to complaint by the plaintiff about his lumbar spine. It also relied upon a failure by the plaintiff to seek treatment.
129The clinical records of the consultation with Dr Doswell on 12 October 2018 noted the plaintiff’s complaint about having hurt his mid-thoracic and cervical spine. They also noted his referral for an MRI scan of the thoracic and cervical spine. There was no mention of pain in his lumbar spine.
130The plaintiff was cross-examined about his lack of complaint to Dr Doswell about pain in his lumbar spine at that consultation. He could not recall whether he told Dr Doswell he injured his mid-thoracic and cervical spine in the motor vehicle accident and not his low back. His evidence was he thought the scans “were supplementary scans just to make sure nothing else was damaged”.
131The plaintiff consulted Dr Doswell on only two occasions in 2018, being 12 and 16 October 2018. When he first saw Dr Doswell, he had already had investigations in relation to his lower back. As the plaintiff said, he could not recall whether he mentioned his lumbar spine to Dr Doswell or not. In any event, because the plaintiff had already had investigations on his lumbar spine undertaken by the time he consulted Dr Doswell, it is reasonable that he may not have referred to his lumbar spine. Further, it is possible he may have mentioned his lower back, but Dr Doswell may not have made a note about it. In that regard, I am conscious, as the Court of Appeal recently noted in Hettiarachchi v Transport Accident Commission,[12] that the recording of statements by a doctor has one purpose: to assist in forming a diagnosis of the patient’s condition. Such statements are “not intended to form part of the forensic arsenal of the cross-examiner. Caution must be exercised in the use of such material”.[13] Similarly, where something is not recorded in the medical notes, care must be taken before concluding that this adversely impacts upon a plaintiff. Having considered the plaintiff’s explanation and the Court of Appeal’s warning, even if there was a failure by the plaintiff to report his lower back injury to Dr Doswell (and there may not have been), in my view this does not lead to the conclusion the plaintiff was not suffering from a lower back injury.
[12] [2023] VSCA 27 (“Hettiarachchi”)
[13] Hettiarachchi at paragraph [58]
132The defendant also contended no significant abnormality of the lumbar spine was detected by either the 5 September 2018 x-ray of the lumbosacral spine or the 18 September 2018 MRI scan of the lumbosacral spine which purportedly accounted for the plaintiff’s pain and disability. It was suggested the only relevant finding which could account for the plaintiff’s pain was sacralisation or partial fusion of the base of the lumbar spine with the pelvis at the L5 level with a pseudo articulation.
133The defendant emphasised that based on the opinions of Professor Davis and Mr Simmons, sacralisation or partial fusion of the base of the lumbar spine with the pelvis at the L5 level with a pseudo articulation was a developmental or constitutional variant which was unrelated to the motor vehicle accident. In other words, if the plaintiff experienced any pain it was caused by a soft-tissue injury only or, alternatively, by the mild degenerative changes seen on the MRI of the lumbosacral spine at the L5-S1 level. The pain was not caused by the motor vehicle accident.
134Having considered the radiology reports, I am satisfied the transitional anatomy at the lumbosacral junction, with lumbarisation of the S1 vertebra found on the MRI scan is consistent with the pain the plaintiff experienced. However, it is not the only reasonable explanation for the plaintiff’s pain. The MRI scan of the lumbosacral spine also revealed that in addition to the minor shallow disc bulges at L2-3, L3-4 and L4-5, there was a possible minor abutment of the traversing L5 nerve roots. Further, there was a posterior annular fissure at the L5-S1 level and a focal central disc protrusion at the L5-S1 level. Each of those matters provided a possible separate basis for the plaintiff’s pain and ongoing symptomatology.
135For the following additional reasons, I do not accept the pain experienced by the plaintiff was due only to a soft-tissue injury or degenerative changes.
136First, the opinions of Mr Kossmann and Mr Grossbard support the existence of an explanation for the plaintiff’s pain other than simply a soft tissue injury or a degenerative condition. The plaintiff was examined by Mr Grossbard on 9 December 2021 and by Mr Kossmann on 25 January 2022. Having examined the plaintiff and taken a full history from him, both Mr Grossbard and Mr Kossmann identified an annular fissure/tear within the posterior aspect of the disc at the L4-5 level. Although mentioned in the body of the MRI scan dated 18 September 2018, the annular fissure/tear was not referred to in the conclusion of the MRI scan of the lumbosacral spine. Mr Grossbard’s opinion was “the motor accident of 6th August 2018 has been a significant contributing factor to the development of this pathology and subsequent symptoms”. Mr Kossmann likewise considered the plaintiff suffered injuries to his lumbar spine in the transport accident.
137After reviewing the film of the MRI scan of the lumbosacral spine as well as the MRI lumbosacral spine report, Mr Grossbard noted in his first report the presence of “what appears to be an annular tear within the posterior aspect of the disc”. He opined the plaintiff had a soft tissue injury to the lumbar spine which involved a “significant injury to the L4-5 level where there was mild degenerative change associated with annular tear”.
138The defendant submitted that no one else saw the annular tearing, and Mr Grossbard’s opinion was at odds with the joint medical examinations of Professor Davis and Mr Simmons. I reject that submission because, as I have already identified, there was objective evidence of the presence of a posterior annular fissure. Although not referred to in the conclusion to the MRI lumbosacral spine scan report, it was referred to in the body of the report.
139The defendant was also critical of Mr Kossmann’s opinion because it did not provide an explanation for the change in the plaintiff’s clinical symptoms between the date of his first and second reports. In his first report, Mr Kossmann said the plaintiff displayed muscle guarding during the clinical examination, the paraspinal muscles of his back were tender, and he had flexion of 80 degrees in the lumbar spine. In his second report in January 2022, the plaintiff was observed to have flexion of his spine of 40 degrees, which was reduced. He had no muscle guarding, no tenderness and no diminution in reflex. The defendant suggested Mr Kossmann had clinical notes about which he made no comment and did not seem to place reliance, and he had not reviewed the MRI film.
140With the defendant’s criticism in mind, I have looked closely at Mr Kossmann’s diagnosis, which was that there were minor disc bulges at the L2-L3, L3-L4 and L4-L5 level; a possible minor abutment of the traversing L5 nerve roots; a posterior annular fissure at the L5-S1 level, and a focal central disc protrusion at the L5-S1 level with intermittent sciatica in both hamstrings and in the plaintiff’s left foot. His opinion was consistent with the information contained within the MRI of the lumbosacral spine as well as the findings on examination that there was intermittent sciatica in both hamstrings and in the plaintiff’s left foot. Ultimately, because Mr Kossmann, like Mr Grossbard, took into account the presence of an annular tear, I am not prepared to discount his opinion.
141Second, I prefer the opinions of Mr Kossmann and Mr Grossbard to that of Professor Davis.
142The information relied upon by Professor Davis was not as current as that relied on by either Mr Kossmann or Mr Grossbard. In writing his second report, Professor Davis did not conduct an in-person examination of the plaintiff or further clinical or neurological tests. He relied on the view he formed over two years previously, that the plaintiff had “no objective neurological findings when he was seen in person”. As the opinion expressed in Professor Davis’ second report was based on the history and reports he was provided, rather than on an up-to-date clinical examination or neurological findings, in my view, in reaching his opinion he relied upon an incomplete clinical picture, rendering his opinion less reliable.
143Further, Professor Davis’ second opinion did not refer to the possible minor abutment of the traversing L5 nerve roots, the posterior annular fissure at the L5-S1 level, or the focal central disc protrusion at the L5-S1 level as identified in the MRI scan. Each of those matters provided a possible independent basis for the plaintiff’s pain and ongoing symptomatology. Because they were not excluded or even discussed by Professor Davis, I reject Professor Davis’ conclusion that any pain experienced by the plaintiff was caused, or caused only, by the lumbarisation degenerative changes at the L5 level and not the motor vehicle accident.
144Third, I prefer the opinions of Mr Kossmann and Mr Grossbard to that of Mr Simmons because Mr Simmons’ opinion was, in my view, premised on an incorrect factual basis. In his report dated 19 March 2021, Mr Simmons opined, consistent with Professor Davis, that the MRI scan of the lumbosacral spine revealed minor constitutional disc bulges consistent with the plaintiff’s age, without evidence of associated radiculopathy. Despite noting some reports of nerve irritation, Mr Simmons posited there was no evidence of significant neural impingement. Rather, there was psychological overlay in relation to the plaintiff’s ongoing symptoms following the original accident.
145I do not accept Mr Simmons’ opinion that the plaintiff’s injury was only due to minor constitutional disc bulges consistent with his age. Mr Simmons did not review the films of the MRI scan of the lumbosacral spine. Had he done so, the presence of an annular fissure/tear consistent with the annular tear referred to in the clinical notes of Dr Green, osteopath dated 18 September 2018 would have been evident. As Mr Simmons did not review the MRI lumbosacral spine films, I consider he incorrectly discounted the hypothesis of an annular tear, or at least downplayed its significance. He consequently did not refer to its presence in his report. His report, like that of Professor Davis, proceeded from a position that the only reasonable explanation for the pain and symptoms experienced by the plaintiff was the presence of sacralisation. As the objective evidence supports the presence of an annular tear, even if the plaintiff’s disc issues were within normal constitutional range for his age and occupation, he could nevertheless have been experiencing pain - even substantial pain - and disability due to an annular tear.
146After taking into account the medical evidence, as well as the totality of the remaining evidence, I find that the plaintiff had pre-existing degenerative changes to his spine being lumbarisation of the S1 vertebra at the L5 level with a pseudo articulation transitional anatomy at the lumbosacral junction, sacralisation or partial fusion of the base of the lumbar spine with the pelvis.
147Immediately prior to the transport accident, the evidence established that any degenerative changes to the plaintiff’s spine were asymptomatic.
148I consequently find the plaintiff suffered an injury to his spine which arose out of the transport accident. First, the pre-existing degenerative changes to the plaintiff’s spine were rendered symptomatic. Secondly, the plaintiff suffered pain following the accident as a result of shallow disc bulges at the L2-3, L3-4 and L4‑5 levels; possible minor abutment of the traversing L5 nerve roots at the L4-5 level; a posterior annular fissure and focal central disc protrusion at the L5-S1 level which, following the accident, manifested as intermittent sciatica into both the plaintiff’s hamstrings and his left foot.
Is the Plaintiff’s back injury a “long-term” injury?
149Mr Kossmann said in his second report that the plaintiff’s prognosis regarding his lumbar spine was guarded, and he would require further maintenance treatment, pain medication and anti-inflammatories. He also considered the plaintiff was at risk of developing further degenerative changes in his lumbar spine which in turn could affect other levels of his lumbar spine. If that occurred, he could require further treatment according to his symptoms.
150Professor Davis, in his report dated 21 October 2019, identified that the plaintiff had “a generally good prognosis but significant ongoing back pain”.
151Ms Minischetti noted that the plaintiff’s prognosis was guarded.
152Although the medical evidence is sparse, I am satisfied that the plaintiff’s injury is long-term in the sense that it is far-reaching.[14]
[14] Tavares v Tavares (2003) 6 VR 577 at paragraph [71]
Credit
153At trial the defendant sought to challenge the credibility and reliability of the plaintiff as a historian. It submitted the plaintiff’s credit impacted whether I should accept his version of events and the veracity of the accounts he gave regarding the extent and severity of his pain.
154The defendant relied on five principal pillars. First, the defendant suggested that the plaintiff had claimed that the impact of the collision was more serious than it actually was. Second, his purported level of pain was inconsistent with the treatment he sought and the lack of prescribed medication he was taking. Third, the plaintiff’s evidence in relation to his boxing ability was exaggerated. Fourth, the plaintiff’s evidence about his participation in football was exaggerated. Fifth, the plaintiff’s evidence that he led a sedentary lifestyle and experienced constant back pain was not credible as evidenced by the six video surveillance footage extracts.
Was the impact of the collision more serious than the Plaintiff claimed?
155In support of the defendant’s submission that the plaintiff’s description of the impact of the collision had been exaggerated, the defendant referred to Mr Simmons’ first report and the information he had received from the M & A Investigations report dated 7 December 2020 confirming the collision was a moderate impact. It was suggested the plaintiff had exaggerated the impact of the collision when he told Mr Simmons that at the time of the accident, the vehicle travelling behind him was travelling at around 50 to 60 kilometres per hour.
156I disagree with this submission.
157Mr Simmons’ report does not say what the plaintiff told him about the speed the vehicle behind him was travelling when it struck him. It says, “He estimates the speed limit on the road around 60kph”.[15] A recollection of the speed limit of a particular area of road is very different from an estimation of the speed of a particular vehicle. What the plaintiff told Mr Simmons does not support a conclusion that the plaintiff was attempting to exaggerate the impact of the collision or that his evidence as to the circumstances of the accident is unreliable.
[15] Exhibit 2, page 6
158In any event, I am satisfied the plaintiff consistently maintained that the vehicle that struck him was travelling at a speed which the plaintiff estimated to be approximately 60 kilometres per hour and that was his contemporaneous and genuine belief as to the speed. He told Dr Chaudhry at the Greensborough Medical Centre on 6 August 2018 – the day of the accident – he had been “hit by a truck at about 60km while he was stationary at roundabout.” He also provided a similar account to Gateway Osteopathy & Pilates on 3 September 2018 when he recounted “MCA a few weeks ago, 6/8/18, rear ended by a truck that was doing about 60km whilst waiting at a roundabout”.
159Further, in cross-examination, he was asked whether he was in a position to dispute the evidence that the defendant’s vehicle was travelling at 20 to 30 kilometres per hour. The plaintiff readily conceded he was “not a speed expert”. Nevertheless, he said he “would know the difference between 20 kilometres and 50 kilometres an hour”. I understood the effect of his evidence to be that he maintained the other vehicle was travelling at more than 20 kilometres per hour and more likely 50 kilometres per hour. I did not regard his evidence as contrary to what he had recounted immediately following the collision.
160Regardless of whether the other vehicle actually was travelling at 60 kilometres an hour or not when it struck the plaintiff, I accept the plaintiff regarded the impact of the collision to have been considerable. He gave consistent accounts of this to the medical practitioners. He told Mr Kossmann that he was stationary at a roundabout when a truck failed to stop and “rear-ended his car”. He recounted how his car was “destroyed” and how he felt “immediate pain”. He described to Professor Davis that the truck was “driving erratically” and “rear-ended his vehicle. He was jolted forwards and backwards, in fact breaking his seat”. He reported to Mr Kaplan that the truck was “weaving in and out of traffic” and then collided with the rear of his vehicle “with considerable force, catapulting his vehicle into the roundabout, just missing the car to which he had given way”. He said that “the force of the collision had flung him about and caused his seat to break off from its moorings”. Having considered the evidence, I am satisfied the plaintiff believed the truck was travelling at “about 60km per hour”.
161The defendant also contended that contrary to what the plaintiff told Mr Simmons, when cross-examined, the plaintiff said the speed limit of the road where the collision occurred was 80 kilometres per hour and not 60 kilometres per hour. It was suggested the plaintiff gave that evidence to bolster his evidence about the claimed impact of the collision. I do not agree. His evidence was:
Q: “You were stationery at a roundabout at a conventional Melbourne suburban street, correct?---
A: That would be correct. No, it's not a conventional suburban street I should say that. It's a bit of a main road. It's got an 80 kilometre speed limit.
Q: Got an 80 kilometre speed limit?---
A:Yep.”
162Later in cross-examination he said:
Q: “You said you thought the speed limit at Fitzsimons Lane and the roundabout was 80 k. What I put to you is that you told Mr Simmons in London when you saw him that the speed limit was 60 k. Page 6 of the defendant's book records he - in the following fashion, ‘He said he’ - referring to you – ‘estimates the speed limit on the road, around 60 kph.’ So what is it? Is it 60?---
A:I'm pretty - no, I'm pretty adamant it's an 80 k road.
Q:Well, why would you tell - and he record - that you said 60 to him?---
A:I couldn't recall. I probably got confused in between what speed I was actually hit at, and then what speed I was telling him for the other one, if that makes sense.
Q:Yes?---
A:I've lived (indistinct) my whole life, it's an 80 k road.
Q:Yes. I suggest to you that like a lot of your evidence, you contradict yourself about certain facts that you think, and then you are definite, and I put to you that you are not sure of your facts. What do you say to that?---
A:I would say that I'm pretty sure of - like - well, I am sure of some of my facts, yeah.
Q:Some of - - -?---
A:Or I am sure of my facts.”
163Having heard the plaintiff’s evidence, I was satisfied he believed the speed limit of the road was 80 kilometres per hour. Even if that recollection is incorrect, the road speed limit does not automatically reflect the speed at which the truck was travelling immediately prior to the collision.
164In the end it is unnecessary for me to make a finding as to the precise speed at which the truck was travelling or the speed limit of the road. I have considered all the evidence including the plaintiff’s affidavits, what he told doctors and said in cross-examination. Having done so, I am not prepared to make an adverse credit finding based on this aspect of the plaintiff’s evidence.
Was the level of pain experienced by the Plaintiff inconsistent with the treatment he sought and the lack of prescription medication
165The defendant submitted the claimed level of pain suffered by the plaintiff was not particularly serious, and even if it was, it was inconsistent with the treatment the plaintiff sought. It was submitted the plaintiff only occasionally got a twinge in his back and it did not cause him any ongoing issues.
166In support of its submission, the defendant relied on the records of Gateway Osteopathic and Pilates, particularly the consultation on 14 January 2019; the records of Ms Lavanya Poovathum Kandi (“Ms Kandi”) at Aurora Psychology that the plaintiff’s back was healing and was 80 per cent better; the fact the plaintiff was taking no prescription medication, and the fact that between October 2019 and October 2021, the plaintiff sought no treatment from a doctor, a physiotherapist, a chiropractor or an osteopath. This was despite having a series of consultations with doctors and other health practitioners in Australia and at the Ritchie Street Group clinic in London at which treatment was available. It was suggested the plaintiff only sought treatment again in 2021 because his case was approaching hearing in February 2022.
167When cross-examined, the plaintiff disagreed that his claimed level of pain was inconsistent with the treatment he sought. He said he first sought treatment from the Greensborough Medical Centre on 6 August 2018, the day he was involved in the collision. He told Dr Chaudhry about the pain he was suffering. He was referred for various diagnostic tests and underwent physiotherapy and osteopathy. He returned on 31 August 2018 to see Dr Azam because he continued to have lumbar pain. He stopped seeing Dr Azam, not because his pain subsided, but because he thought “he was not very thorough and did not pick up that I had a serious back injury”. He explained, “I just got rear ended in the back by a truck and all he did was send me home. He didn’t prescribe anything – no medication.”
168The plaintiff said when he began to consult Dr Doswell on 12 October 2018, he was referred for an MRI scan of his cervical and thoracic spine. It was put to him he did not discuss his back pain with his doctors including Dr Doswell. The plaintiff’s response was that he did and that was reflected in the medical records. He said he could not recall whether he told Dr Doswell that his mid-thoracic spine, as opposed to his lumbar spine, was injured, but he thought he was being referred for supplementary scans just to make sure nothing else was damaged. As I have already outlined, I accept this explanation based on the other investigations which were being undertaken of the plaintiff at the time and the type and location of pain which was being reported to other health practitioners.
169The plaintiff agreed that following his consultation with Dr Doswell on 16 October 2018 he did not consult Dr Doswell again until 26 August 2019. There was then a further attendance on 22 September 2019. The plaintiff accepted he did not consult a doctor for treatment in relation to his back injury or seek physiotherapy, chiropractic or osteopathic treatment between October 2019 and October 2021, but he was unable to say whether they were the entirety of attendances he had on a general practitioner until he left for London and whether he next consulted a general practitioner at the Ritchie Street Clinic in London on 20 January 2022. He said “I couldn’t say yes, and I couldn’t say no. I’m not trying to give you the run around, but I couldn’t give you a straight answer.” His evidence was he thought he continued to have treatment at Watsonia Physiotherapy and Clinical Pilates up until January 2020. He also said he continued to undertake home training exercises from his physiotherapist.
170Although the plaintiff may not have seen a doctor for almost two years, this does not lead me to conclude, as the defendant submitted I should, that the plaintiff’s back injury had substantially resolved and anything contributing to his pain was either constitutional in nature or driven by psychological overlay. Nor have I concluded the plaintiff’s evidence regarding his pain was exaggerated or unreliable because he did not seek treatment during this period.
171First, just because the plaintiff did not seek treatment, does not mean he was not experiencing pain.
172Second, although the plaintiff agreed when cross-examined that he could have sought treatment for his back at any time, he said he had been managing his pain himself by taking paracetamol which he obtained off the shelf from the pharmacy. He did not take prescription medication because it affected his stomach and his mental health.
173Third, it was submitted by the defendant the plaintiff’s back injury improved, which could explain why he did not formally consult a general practitioner, chiropractor, osteopath or physical therapist between November 2019 and October 2021. However, it is equally plausible he stoically soldiered on. In any case, his symptoms, pain and restriction remained significant enough for him to consult Ms Minischetti, chiropractor, in London on 12 October 2021.
174The plaintiff said when he saw Ms Minischetti, “I was actually having more and more sleeping problems coming into the last of the year and what had happened was my back was actually – it was at a sort of stable point and then it sort of starts like getting rickety every – I wouldn’t say a stable point, like it goes up and down, as I said, the whole way through and then, yeah, and then I started going to see her and then I can’t go and oversee her because it aggravates my back.”
175The plaintiff’s claims in relation to his level of pain and restriction were corroborated by Ms Minischetti’s physical examination of him. Ms Minischetti found the plaintiff had SLR right leg 50 degrees, causing right hip pain and SLR left leg 70 degrees. A Braggard’s test was positive on the right, which was found to be causing leg and lower back pain. He had tight erector spinae muscles bilaterally. His lumbar active range of movement was decreased in flexion, extension and bilateral rotation. His Patellar and Achilles reflexes were 2+. The sensation in his lower legs was normal but his muscle testing was limited by pain.[16]
[16] Exhibit A, page 96
176Fourth, there was an independent explanation for the plaintiff’s ongoing pain beyond simply a soft tissue injury. The opinions of both Mr Grossbard and Mr Kossmann, as I have found, supported the conclusion the plaintiff had an annular fissure or tear in his spine. The plaintiff also suffered shallow disc bulges at the L2-3, L3-4 and L4-5 levels; possible minor abutment of the traversing L5 nerve roots at the L4-5 level, and a focal central disc protrusion at the L5-S1 level with intermittent sciatica into both the plaintiff’s hamstrings and his left foot.
177Fifth, the content and the manner in which the plaintiff gave evidence did not lead me to conclude the history he gave of his pain and disability was unreliable. In my view, the plaintiff provided his responses to the questions asked of him in a straightforward and honest way. He did not try to avoid answering difficult questions and I did not form the impression his descriptions of pain were exaggerated.
178It was submitted on behalf of the plaintiff he was a stoic person. I agree. I have concluded he did not exaggerate his symptoms. If anything, his attempts to maintain his employment and resume some physical activities such as walking, bike riding, and attending a local gym to punch a boxing bag, demonstrated a significant willingness to attempt to adapt to the new circumstances he faced. Given his young age, it is not unexpected that he would want to try to resume as normal a life as possible.
179I do not consider his reliability as a historian was impacted by the fact that he did not seek medical treatment or prescription medication from October 2019 to October 2021.
Was the Plaintiff’s evidence in relation to his boxing exaggerated?
180It was submitted by the defendant that the plaintiff’s evidence in relation to his boxing ability was exaggerated. The defendant submitted that contrary to the plaintiff’s evidence that he was on the cusp of an elite level of boxing, he did not qualify for either the Commonwealth Games or the Olympics and did not even participate in the trials. He had not won a national or state title. He was in the novice, and not the elite group. He could not explain why he was unregistered for boxing in January 2018. He did not have, and could not produce when called for, the contents of his blue book, or records of the fights in which he had participated. Ultimately, it was submitted his fight record was inconsistent with someone aspiring to compete at the Commonwealth Games or the Olympics.
181The plaintiff’s evidence was that boxing was important to him. He had been attending the boxing gym since he was five years old. His earliest memories were of attending the boxing gym with his father. He said he learned to box from his father throughout high school and later boxed with Mr Murphy from 2014 or 2015.[17] Until the accident he was “always training”,[18] “always sparring”[19] and “helping out people for their high-level fights”.[20] He described boxing as a “core element”[21] of his life. He aspired to either fight at the Commonwealth Games or at Olympic level.[22]
288The defendant submitted the plaintiff’s inability to play football was not a consequence of any significance. He played football in 2010 or 2011. He did not play in 2012 or 2013 and began again in 2014 for a few games. He did not play from 2015 to 2018 and only attempted a return to training in 2019.
289Mr Grossbard noted in his report dated 19 April 2022, and the plaintiff expressed in his affidavit, that he was disappointed generally at not being able to return to high level competitive sport.
290I accept that a consequence of the plaintiff’s injury has been that he has been unable to participate in sport to the extent he once did.
291I do not accept that the plaintiff lost the ability to play competitive football as a result of the accident, principally because he had not played football for a number of years when the transport accident occurred.
Driving
292In his second affidavit, the plaintiff said that since the transport accident he is fearful of driving and of trucks in particular. Since moving to London, he has avoided driving other than on limited occasions. He relies on public transport and his bicycle. He is also fearful of being a passenger in cars driven by other people and is wary of potential collisions. He said he experienced flashbacks occasionally and woke at night periodically with nightmares of the accident.
293Mr Kossmann noted in his report dated 24 October 2019 the plaintiff was able to drive with difficulties.
294When the plaintiff saw Ms Kandi, following the transport accident, Ms Kandi recorded “Current issues after accident – stressed out while driving, hypervigilant, anxious …”.
295Dr Kaplan in his joint report dated 14 November 2019 observed that since the accident the plaintiff felt anxious on the road and when travelling as a passenger. Observing scenes of accidents on television induced anxiety. The memory of the transport accident popped into his thoughts when his car stopped in traffic and when he looked in the rear-view mirror. At times he relived the feelings he experienced when he had the accident.
296In his report dated 21 October 2019, Professor Davis recorded that the plaintiff felt “pretty down” after the accident. He was seeing a psychologist on a weekly basis. He reported flashbacks of the accident and was hypervigilant. He was anxious in traffic.
297At the time Professor Davis prepared his second report dated 1 February 2022, the plaintiff remained fearful of driving and of being a passenger in a car. He continued to experience occasional flashbacks and sometimes woke with nightmares at night. He worried about the future. He was not driving and felt that being out of the car was better for his mental state.
298Having considered the evidence, I have formed the view that since the transport accident, the plaintiff retains a limited ability to drive. Despite his limited ability, he remains fearful when doing so and consequently avoids driving when possible.
Social activities
299In his first affidavit, the plaintiff said before the transport accident he enjoyed an active social life. He participated in tenpin bowling, dancing, social golf, football, and went on runs. This was confirmed by the plaintiff’s friend, Mr Harris, who said that before his injury, the plaintiff often went out socially and had many friends. Similarly, the plaintiff’s friend, Mr Stroumos, endorsed the plaintiff’s sociability and participation in dancing prior to the accident.
300In his first affidavit, the plaintiff said that following the accident his social life dived. Although his back condition had improved since then, he was still limited in what he could do. He described continued restrictions in his participation in activities with his friends such as ten-pin bowling, golf and running.
301In his second affidavit the plaintiff explained he no longer goes tenpin bowling. The action of lifting and bowling the ball causes an increase in pain in his lower back. He avoids dancing because he has limited ability to twist his body. He is unable to run on uneven ground and there is a limit to the distance he can run. He has been unable to return to playing social golf because of his inability to swing a club properly and to twist his lower back without experiencing pain. He misses the social aspect of playing football.
302When cross-examined, the plaintiff said he still liked to have a drink at the pub, but that he “definitely used to be a lot more social”. He said his social life had been “completely interrupted” and “is still very restrictive from what I am used to”. He said the accident “completely changed my identity to be honest”.
303Mr Stroumos confirmed the plaintiff became hard to convince to go out and responded to invitations with reluctance and a lack of enthusiasm. He often complained about his back hurting.
304In his report dated 14 November 2019, Mr Kaplan identified that before the transport accident the plaintiff led an active social life. The plaintiff reported he was a “pretty fun, happy and outgoing sort of guy”. He became socially withdrawn after the accident. Although his social life improved, it had not returned to normal. He had not fully regained his self-confidence.
305Similarly, Professor Davis in his report dated 28 October 2019 identified there had been an impact on the plaintiff’s relationships with his friends, family, and work mates.
306In his second report dated 1 February 2022, Professor Davis noted the plaintiff could no longer go tenpin bowling or play golf or football.
307Mr Simmons identified in his report that the plaintiff stopped socialising for about six months. He gained weight and lost confidence. He also opined that the effects on the plaintiff’s employment, domestic, social, recreational and personal life appeared reasonable.
308It was apparent from the evidence that there had been a decline in the plaintiff’s social activities. This was due to the disabling effect of the plaintiff’s lower back injury.
309Before the accident the plaintiff was involved with many different sporting activities. Since the accident, the plaintiff has been unable to enjoy boxing and playing social football to the same extent he once did. His ability to play golf, to go tenpin bowling and dancing have been significantly impacted. Further, although he appeared at times to enjoy a social life, including as observed in the video surveillance footage, attending the pub and social functions with friends, as he outlined when cross-examined, his social life is very restricted compared to what it once was. I am satisfied that a consequence of his lower back injury has been a decline in the plaintiff’s overall ability to participate in social activities.
Fitness
310Prior to his accident, the plaintiff lived with housemates and said he was proud of his level of fitness. He explained his back injury had a negative impact on his overall fitness. Following the accident, he initially gained weight. He said in his second affidavit, that he had managed to lose some of the weight. He was nevertheless still heavier than he was before the accident, and he felt self-conscious about this.
311I am satisfied the plaintiff’s overall fitness has declined as a result of his injury.
Psychological impact
312In his first affidavit, the plaintiff said that before the accident he was confident and outgoing. He was optimistic about his future. His back injury had an enormous impact on his life. It affected his confidence and self-esteem. He lost some of his easy-going temperament.
313The plaintiff said in his second affidavit he worried about the future. He is aware his back does not function properly, and he is fearful he will remain limited in his work as an electrician and will experience pain for the rest of his life.
314Mr Harris said before the plaintiff moved to London, he would visit Mr Harris at his house. He would talk to Mr Harris for hours and confide in him about how his back was still hurting; how badly he felt emotionally since the transport accident and about how much he missed boxing. He expressed frustration that his efforts to recover from his back injury were not working. Mr Harris said the plaintiff told him how difficult work was because of his back pain and how he worried about his future employment prospects.
315Now when he speaks to the plaintiff by phone in London, the plaintiff expresses he is worried it is not realistic for him to work as an electrician because of his back injury. He usually sounds flat and tired. He speaks differently to the way he spoke before the accident.
316Mr Kaplan noted that the plaintiff became depressed and anxious following the transport accident. He experienced chronic pain and physical limitations. Mr Kaplan said although his condition had improved, it had still not resolved. The plaintiff continued to experience sleep and appetite disturbances. He had not fully regained his self-confidence and had difficulty with memory and concentration. His social life, although improved, had not returned to normal.
317I am satisfied that the transport accident has had a psychological impact on the plaintiff.
Pecuniary disadvantage
318Under s93(4)(d), I am required to consider the pecuniary disadvantage consequences for the plaintiff. That is, I must consider each of the pain and suffering and loss of enjoyment consequences and also the pecuniary disadvantage consequences separately to ensure that proper regard is given to the extent of the pecuniary disadvantage consequences.[34] I must also determine whether the pain and suffering consequences, in combination with the pecuniary disadvantage consequences, satisfy the serious injury test.[35]
[34] Hooley v Transport Accident Commission (supra) at paragraph [37]
[35]Thapa v Transport Accident Commission (2021) 97 MVR 268 at 282, paragraph [61] (per Beach, Kaye and Kennedy JJA))
319The plaintiff said in his evidence that he is limited in the type of work he can accept and has had to reject job offers on occasion. Sometimes he has needed to take days off work. Some tasks affect his back. His back has seized up when lifting or manoeuvring cable drums and his back pain has increased with activities such as climbing ladders or working in tight or awkward spaces. He tries not to use crowbars, jack hammers, hammer drills and ladders. He avoids prolonged standing, pulling heavy electrical cables, and working in awkward and confined spaces. He also keeps clear of heavy lifting and, if necessary, seeks assistance from a colleague. He does not lift cable drums greater than around 6-millimetre cable. He now performs more supervisory work, as well as setting up and maintenance of switchboards.
320The plaintiff was cross examined about his ability to perform work as an electrician. He agreed he could still do his job but said there were limitations. He said:
“I don’t think I’ve been able to work as – to a small certain extent, yeah I know, but not to where I was. And I haven’t been able to train, haven’t been able to do anything properly.”
321While he agreed he has been able to obtain some supervisory roles, he explained that was not always possible due to his lack of experience and because of the transport accident.
322Further, he said that but for his injury he would not have relocated to London. He would have continued in the contracting job he had been doing with Nuvo. He described that employment as “the best job that I’ve ever had, to be honest, and then – I don’t think I’ll get another job like that again, to be fair”. Additionally, he preferred to “be on the tools”. He liked “being around the boys” and “being out there in the field”. He said he used to love his work and now struggled to get up and go to work. He said it was depressing for him.
323Mr Kossmann in his first report was of the opinion the plaintiff had a work capacity and noted he had returned to work as an electrician on modified/light duties. He considered the plaintiff should avoid physically demanding work or work where he had to walk long distances, on uneven grounds, upstairs and downstairs, or on inclines and declines. He considered he should avoid climbing ladders, kneeling, squatting or carrying heavy items weighing more than 5 kilograms. He doubted it was sustainable for the plaintiff to work without any of those restrictions. If he did, his opinion was the plaintiff would suffer from increasing pain issues and an acceleration of the degenerative changes in his lumbar spine.
324Mr Grossbard considered the plaintiff was able to undertake many activities associated with electrical work, but noted his inability to lift, climb, or crawl into tight spaces. He opined the plaintiff had capacity to work as an electrician with modifications to his work requirements. Episodes of increased pain requiring days off work were noted. He doubted the plaintiff would be able to return to his pre-injury employment in a full capacity. His opinion was the plaintiff would continue to have pain including future exacerbations of acute pain.
325Professor Davis in his first report noted the plaintiff was working fulltime in his usual occupation but there were limitations related to low back pain.
326In his second report dated 1 February 2022, Professor Davis recognised the plaintiff had significant limitations on his duties at work. He avoided working in awkward positions, such as in ceilings or under floor spaces. His lifting capacity was no more than 25 kilograms. He did not use ladders or engage in heavy lifting, bending, or twisting of the spine. He avoided using jack hammers and crowbars and minimised his use of hammer drills. He delegated the task of pulling heavy electrical cables.
327Mr Simmons in his report dated 19 March 2021, considered the plaintiff had a capacity to work and no restrictions on his future work capacity were required.
328Mr Mazzocato in his report dated 16 January 2020, opined that because the plaintiff was an apprentice electrician, daily tasks would irritate or provoke his back.
329The plaintiff did not contend he had suffered a pecuniary loss. It was submitted that notwithstanding the plaintiff was working and had not suffered a pecuniary loss, his back injury continued to affect his ability to work, and he had sustained pecuniary disadvantage. By reason of the restrictions to his spine he was unable to work unrestricted. He avoided bending, twisting and contorting; did not use various equipment, and did not work in roof spaces. He had not been on normal duties since the accident. He had continued to require time off work. He had pain and he did not enjoy work as much anymore. As he was only twenty-five years old at the date he was injured, he would have to contend with those consequences for the prolonged future.
330The defendant submitted following the transport accident the plaintiff had returned to work and was able to perform a supervisory role. He was earning more than he had been before the transport accident. Consequently, no pecuniary loss was established. Ultimately, unless there was other evidence demonstrating he experienced significant pain or disability, it would be hard to conclude the pain and suffering consequences were “at least very considerable.”[36]
[36]Sumbul v Melbourne All Toya Wreckers Pty Ltd (2006) VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 per Ashley and Beach JJA at paragraph [45]
331I accept that the plaintiff returned to employment after the transport accident and at the date of the application was working in London in a supervisory role. I also accept he had not sustained a pecuniary loss at the date of the application. However, just because a plaintiff can still work and there is no recorded pecuniary loss at the time of the application, does not mean they have not suffered pecuniary disadvantage or serious injury.[37] As the Court of Appeal observed in Abbas v Transport Accident Commission,[38] that “would be to disregard the totality of the applicant’s circumstances.” The relevant enquiry is whether the consequences of the injury satisfy the relevant test.
[37] Sutton v Laminex Group Pty Ltd (supra)
[38] Supra
332Where an applicant’s field of employment has been permanently limited from a very young age, that consequence may be very significant. In Hooley the Court of Appeal said:
“The pecuniary disadvantage consequence of having one’s chosen field of employment permanently limited from a very young age is, as we have said, a very significant consequence. It includes but goes well beyond being a pain and suffering or loss of enjoyment of life consequence.”[39]
[39] Hooley (supra) at paragraph [50]
333On the one hand, the plaintiff has not suffered a pecuniary loss and has retained an ability to work as an electrician in some capacity. This tends against a conclusion he has suffered a serious injury. Similarly, the plaintiff’s lack of restriction demonstrated by the video surveillance footage, and his physical ability to seemingly continue with aspects of his daily life, including his work, suggests that if he does experience pain, arguably it is at the lower end of the scale. However, an applicant should not be treated less favourably than another who, being of less strength of character, simply resigns himself to his injury.[40]
[40] Dwyer v Calco Timbers Pty Ltd [No 2] (supra) at paragraph [3]
334I have considered the plaintiff’s pain and I have found it to be at least significant. I also accept that the plaintiff is incapacitated for aspects of his work in an ongoing sense. I accept he cannot lift or manoeuvre certain equipment and must avoid using crowbars, jack hammers, hammer drills and ladders. He now has to avoid prolonged standing, climbing, kneeling, squatting or carrying heavy items. He is unable to pull heavy electrical cables. He cannot walk long distances, on uneven grounds, upstairs and downstairs, or on inclines and declines and cannot work in tight or awkward spaces. He has episodes of increased pain necessitating time off work.
335I have also found that he is stoic and has an advanced ability to tolerate pain. This provides an explanation for his willingness to continue working and to try to return to his pre-injury sports and hobbies. As he is stoic, he should not be treated less favourably than another person who might more readily have resigned themselves to their injury.
336In my view, those matters are enough for me to conclude that the plaintiff’s pecuniary disadvantage is real and significant.
337I also take into account the plaintiff’s very young age at the date he was injured. In my view, the pecuniary disadvantage consequence of having his chosen field of employment limited at the age of twenty-five is a very significant consequence which extends beyond being merely a pain and suffering consequence.
338The pecuniary disadvantage consequences alone are enough to conclude the plaintiff has sustained a serious injury.
339With respect to the plaintiff’s pain and suffering consequences, the plaintiff’s back pain is present most of the time. It affects his daily activities. He is restricted in standing, walking, sitting, bending and twisting. He experiences intermittent pain in his legs which is usually worse on his left side. The pain radiates to his foot, and he feels pins and needles in the soles of his feet, particularly on the left side. The plaintiff’s pain is at least significant.
340In addition to pain, the plaintiff experiences sleep difficulties. He wakes two to four times per week from pain for anywhere from thirty minutes up to several hours. He has nightmares irregularly and infrequently. Although he does not take prescription medication, he is required to take Codeine and Paracetamol for back pain. He wakes unrefreshed and has trouble concentrating.
341His mobility has been restricted.
342He has difficulty putting on shoes and socks and cutting his toenails. When his back is symptomatic, he has trouble dressing
343The plaintiff’s ability to complete heavier domestic tasks such as vacuuming, mopping and cleaning toilets and bathrooms has been impacted and he may require some domestic assistance in the future.
344His ability to participate in the sport of boxing has been curtailed and his overall fitness has declined.
345His social life has been restricted compared to what it once was. He is unable to enjoy many of the activities he did before he was injured. He can no longer dance, go tenpin bowling or play golf.
346His injuries have psychologically impacted him. He is less relaxed and fearful of the impact of his injuries.
347Each of these matters suggests that his pain and suffering consequences, alone are at least very considerable.
348When the plaintiff’s pain and suffering consequences are considered in conjunction with the range of pecuniary disadvantage consequences I have already mentioned, in combination these matters indicate that the pain and suffering and loss of enjoyment of life consequences suffered by the plaintiff are at least very considerable.
349While the video surveillance footage might support a view that the plaintiff has retained a level of function which might suggest his injury is not serious, it should not be forgotten that while what the plaintiff has retained is relevant, the predominant enquiry remains an assessment of what the plaintiff has lost, and the consequences suffered.
Conclusion
350I find the plaintiff has suffered a serious injury.
351I will hear argument with respect to costs.
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