Job v TAC
[2019] VCC 2046
•13 December 2019
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-01765
| PHILLIP JOHN JOB | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 26 November 2019 | |
DATE OF JUDGMENT: | 13 December 2019 | |
CASE MAY BE CITED AS: | Job v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2046 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Injury to neck as result of car accident; application for leave to bring
damages claim based on finding of “serious injury” under (a) of definition; whether pain organically or functionally driven; whether injury “serious” within the meaning of the Act.
Legislation Cited: Transport Accident Act 1986 s93
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Richards v Wylie [2000] 1 VR 79; Transport Accident Commission v Kamel [2011] VSCA 110; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Petkovski v Galletti
[1994] 1 VR 436
Judgment: Leave is granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. H. Mighell QC with Mr M. Fogarty | Arnold Dallas McPherson |
| For the Defendant | Mr W. R. Middleton QC with Ms B. A. Myers | TAC |
HIS HONOUR:
1 Mr Job seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring a claim for damages for the injury which he suffered in a transport accident within the meaning of the Act on 21 April 2015.
2 Mr Job says that he was travelling on the Elmore-Lockington Road between Elmore and Lockington. It was dark and his vehicle collided with an air-seeder (a piece of farm machinery) that had broken down in the middle of the road. He says the equipment item was not illuminated and he had been dazzled by the high beam headlights of an oncoming vehicle. (Plaintiff’s Court Book (“PCB”) 11-12, [8]) Taken by ambulance to the Bendigo Hospital, Mr Job had 30 or 40 stitches to lacerations in his scalp. He suffered an injury to his right middle finger which remains unable to flex fully. After a few days, he noticed the onset of neck pain which continued. (PCB 12, [9])
3 He visited his local general practitioner, Dr Eji Ekeanyanwu, at Campaspe Medical Centre and undertook treatment from a Mr Graham Hodgson at Rich River Chiropractic Centre. He continued attendance for this treatment until 2017.
4 He had been working in the evenings at a shop known as “Steve’s Liquor”. He said since the accident, “Duties such as lifting slabs aggravated my neck pain.” (PCB 12, [12])
5 Mr Job ceased working at Steve’s Liquor not because of his neck pain but to take up an opportunity at an organisation known as Rodwell’s, a dealer in farm equipment and products. He worked there for about 18 months until he was told that his job had been abolished in a restructure. He was out of work for about six weeks. (PCB 13, [13])
6 He then commenced work delivering bread for Tip Top Bakeries. His hours are 2.00am to 8.00am. He says he is an apprehensive driver and “I only sit on about 80 kph because driving at night causes me significant anxiety. I am also slow and careful how I do things because of my neck pain.” He now also works two or three days a week in the evenings at Steve’s Liquor. (PCB 13, [14])
7 Mr Job continues to complain of neck pain, which he says “is with me most of the time”. He said he suffers headaches at the rate of two a week sometimes three a week. (PCB 13, [15])
8 He says he takes between 20 and 40 Nurofen per week to ease the pain and drinks stubbies “which help with the pain”. (PCB 13, [16])
9 According to Mr Job:
“Activity aggravates my neck pain. I get about and do my things and try to put up with it as best I can. Bending and lifting aggravates my neck pain but I have to do things, both at home and in my jobs. At Tip Top I have to lift crates of bread. I am lucky because they aren't too heavy. Despite this, it can still aggravate my neck pain. Sitting and driving the bread truck aggravates my neck pain. I put up with the neck pain because I need money. I have to take my time at work. I rely on my mirrors in the truck, and also in my car, because reversing is a real struggle due to my neck injury. I avoid turning my head to look over my shoulder because it hurts my neck.” (PCB 14, [18])
10 Mr Job had been returning from coaching the Elmore Football Club when he was involved in the collision. He coaches the reserve team and continues in that role. Three or four months after the accident, the team was reduced to 13 or 14 players. Presumably to avoid the team’s suffering a loss by forfeit, Mr Job took to the field himself and played for about 10 minutes. He said that he has not done this since. He suffered neck and shoulder pain after being the subject of a tackle. He said:
“Prior to the accident, I had no trouble filling in when we were short of players.” (PCB 14, [19])
11 Mr Job complains that sitting aggravates his pain and it is uncomfortable for him to sit for long periods. He takes the opportunity of stops on the bread run to get out of the truck “This helps relieve some of my neck pain”. (PCB 15, [21])
12 Mr Job complains that he has to rely on help for heavy work such as collecting wood for which he has assistance from his partner’s son who has to do most of it. He says, “If I do too much my neck pain plays up. It is frustrating”. (Ibid, [22])
13 He complains that sleep is a problem:
“At least two or three times a night I wake because of neck pain. Connie [his partner] gets very annoyed at me because I wake up and disturb her. It has put pressure on our relationship. We are less intimate. I have about 4 pillows and I rotate through them.” (PCB 15, [23])
14 Latterly, he and his partner have slept in separate rooms. (PCB 20, [11], T30, L29-31)
15 Despite complaint from Mr Job as to his need for assistance gathering firewood (PCB 21, [13]), he admitted in cross-examination that he still owns a chainsaw. (T23, L9-10)
16 According to a second affidavit sworn as recently as 13 November this year, Mr Job says he has ceased his football coaching because “I am unable to run around and demonstrate drills like before due to neck pain. I still go and watch games”. (PCB 21, [12])
17 Mr Job’s partner, Ms Connie Pellegrino, swore an affidavit and gave evidence. She drew a comparison before the accident and afterwards. Since the accident, she said:
“he is uncomfortable most of the time. I do not believe he is ever free from pain. He is moody, and often will be quite short with me. This is worse when his pain is worse, though he does have good days and bad days with pain. If anything.” (PCB 22, [3])
18 Ms Pellegrino said that she works in a café and Mr Job continues to work because they need the money. She corroborated his evidence as to his disturbed sleep and his lack of ability to contribute to the doing of household chores. She said he is resistant to taking medication:
“especially due to his driving job. It can make him drowsy and woozy. He is stubborn and will try to get through pain periods, even if it makes him worse, until whatever he is doing is finished. This includes work. He will often book an extra visit at the chiropractor if this happens.” (PCB 23, [9])
19 For the purposes of the present application, Mr Job relies only on paragraph (a) of the definition of “serious injury” appearing in s93(17) of the Act. The initial reliance on paragraph (c) relative to mental or behavioural disturbance has been abandoned.
Legal considerations
20 Section 93 of the Transport Accident Act 1986 precludes a plaintiff from recovering damages for the results of a transport accident except in accordance with the provisions of the section. Sub-section (2) permits a plaintiff to recover damages for such an injury if the Transport Accident Commission determines the person’s degree of impairment and the injury is a “serious injury”. Sub-section (3) deems an injury to be “serious” if the impairment assessment made by the Commission is 30 per cent or more. Under sub-s(4), if the determined impairment is less than 30 per cent, then the damages claim may be brought only if the Commission is satisfied that the injury is “serious” and issues a certificate or a court gives leave to bring the proceeding. Sub-section (6) provides that the court must not grant leave “unless it is satisfied that the injury is a serious injury”.
21 Under sub-s(17), the expression “serious injury” is defined as follow:
“In this section—
‘pain and suffering damages’ means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;
‘pecuniary loss damages’ means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;
‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d)loss of a foetus.”
22 In the present case, reliance is placed solely upon paragraph (a) of the definition.
23 In the early days of the operation of these provisions, the Full Court of the Supreme Court of Victoria gave what has become a hallowed analysis of the operation of these provisions in Humphries v Poljak [1992] 2 VR 129. In a joint judgment, Crockett and Southwell JJ said:
“Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. 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"? Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility.”
24 Earlier, on page 114, their Honours had said, speaking of the definition of serious injury in sub-s(17):
“…It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c)…”.
25 In Richards v Wylie [2000] 1 VR 79, the Court of Appeal set aside a determination of serious injury made by a judge of this court. The error in the trial judge’s assessment was identified by Winneke P as follow:
“In my opinion, it is implicit in his Honour's conclusions that he was accepting that the respondent's mental disorders or disturbances were, to a significant degree, producing the symptoms upon which his Honour relied in finding that the respondent was suffering from a long term impairment of a body function…”
26 Buchanan and Chernov JJA concurred. In his concurring judgment, Chernov JA stated:
“The requirement formulated by Crockett and Southwell, JJ. in Humphries v. Poljak[9] that, in the context of determining whether the injury sustained by the plaintiff as a result of the accident is a "serious injury" a distinction must be maintained between the physical consequences of the injury and those which have resulted in mental or behavioural disturbances, is a reflection of the wording of s.93(17) of the Transport Accident Act 1986. Thus, so far as is relevant, the consequences of the injury are to be determined by reference to the definition of "serious injury" in either para.(a) or (c). Although the textual distinction between those paragraphs may be simply stated, it will often be a difficult task for the trial judge to determine which of para.(a) or (c) applies for the purpose of establishing whether an injury and its manifestations amount to a "serious injury".
It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para.(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay" to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para.(a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the "anomaly" to which their Honours referred in Humphries v. Poljak[10] which might otherwise take place as it did in this case. The medical evidence summarised by the President seems to establish that, although the plaintiff suffered a soft tissue injury of the cervical spine, it was the operation of mental and psychological factors that were the dominant cause of his condition. In those circumstances, it was inappropriate to determine the relevant issue by applying the criteria in para.(a) of the definition section. As the President has pointed out, in the circumstances of this case, the question whether the plaintiff suffered a "serious injury" fell to be determined by the provisions of para.(c) and not para.(a).”
27 In the present instance, reliance was placed on behalf of the plaintiff solely on paragraph (a). The effect, then, is that if pain and restrictions are found to be relevant bodily functions which are predominantly psychologically-driven, as distinct from the consequences of physical injury, such impairments or restrictions must be put to one side and ignored for the purposes of determining whether the plaintiff in this case has sustained a serious injury. If, however, pain and restrictions are found which are predominantly caused by physical injury, it is proper to consider not only the consequences of the physical injury but also any “functional overlay”.
Expert opinions
28 It will be recalled that following treatment by way of scalp stitching in hospital, Mr Job first sought treatment for his neck by attending general practitioner, Dr Ekeanyanwu at Campaspe Medical Centre. The doctor provided a report to Mr Job’s solicitors by way of letter dated 10 June 2017. He noted that the first consultation was on 24 April 2015. At the presentation, according to the doctor, “He was diagnosed with (sic) car accident with multiple scalp lacerations and possible whiplash injury which led to impairment in the range of movement of his neck”. The doctor said that “the patient was partially incapacitated”, “but with the resolution of his symptoms his prognosis is quite good”. He said that as at 10 June 2017 the injury was stabilised. The doctor believed, as at that date, Mr Job was fit for work and he was “not expecting any future incapacity as a result of his injuries”. (PCB 25)
29 The doctor provided an updated report on 7 November 2019, once again addressed to Mr Job’s solicitor. The doctor noted:
“several occasions he has mentioned that he still suffers neck pain as a result of the whiplash sustained in the accident.” (PCB 27)
30 Mr Job told the doctor that he maintained regular visits to the chiropractor. The doctor described the prognosis as “cautiously optimistic” (Ibid). The doctor said:
“while he suffers from chronic neck pain often worsened after work this has not stopped him from doing his usual job.” (Ibid)
31 The doctor said there were, however, periods of “acute exacerbation of his neck pain”. (Ibid) As at the date of the report, the doctor found “no incapacity to his ability to perform his usual job”. (Ibid)
32 Chiropractor, Mr Graham Hodgson, reported to Mr Job’s solicitors in an undated report. Mr Hodgson gave a history of the accident and Mr Job’s condition generally in accordance with the background recited above. He said:
“I concluded that Phil was primarily suffering from a flexion/extension injury of his cervical spine (whiplash) but there were also some possible neurological issues involving previous concussions which may have been aggravated by the trauma involved in the accident. This type of assessment would need to be performed by a Neurologist.” (PCB 29)
33 He said that the “trauma suffered in the accident aligned with the patients (sic) history, will cause ongoing issues well into the future.” (PCB 30)
34 In a subsequent report dated 30 October 2019, again addressed to the solicitors, Mr Hodgson said, “Whiplash can have an extremely long life”. (PCB 32) He observed:
“The longer people are in pain or discomfort the more likely they are to become pain sensitive. This leads to stress and anxiety becoming more of a factor, thus possibly accentuating the perception of pain.” (Ibid)
35 Mr Job’s solicitors had him assessed for medico-legal purposes by Mr David Brownbill, consultant neurosurgeon, who saw him for assessment on 18 October 2017, reporting to the solicitors in a letter dated 18 October 2017. Mr Brownbill stated:
“Examination on the 18th October 2017 showed some restriction of cervical spine movements. There was no objective neurological abnormality of the cranial nerves or of the peripheral nervous system in upper or lower limbs.
Radiological investigations did not demonstrate any acute injury to the cervical spine or brain.” (PCB 40)
36 Mr Brownbill said later in his report:
“It is appropriate for him to avoid heavy lifting or forced cervical spine mobility. There is no impediment otherwise to employment capacity from a neurosurgical point of view.
I do not anticipate any untoward neurological sequelae.” (PCB 41)
37 Mr Brownbill regarded the neck impairment as stabilised as at October 2017. (Ibid)
38 Mr Job’s solicitors also had him assessed by Mr Damon Thomas, a plastic and reconstructive surgeon, for medico-legal purposes. Mr Thomas reported on his assessment in a letter to the solicitors dated 18 October 2017.
39 Mr Thomas recited a history of Mr Job suffering multiple skin lacerations to his scalp and forehead, a right middle finger mallet deformity and a whiplash injury. As to the scarring, Mr Thomas said:
“Mr Job has mature scars from these injuries. These are permanent and lifelong. They do not cause him any functional impairment currently and this will not change. The only issue is that of a psychological concern surrounding the injuries from a cosmetic point of view and in my opinion this will be an ongoing impairment.” (PCB 47)
40 He also referred to the inability of Mr Job:
“to completely extend the right middle finger. He does not feel this causes many functional disturbances and he is not interested in having any treatment for it and although it will be a permanent change to the finger, the impairment related to this is minimal.” (Ibid)
41 Mr Thomas considered the impairments stabilised. (Ibid) He said the scarring was permanent “albeit in the mid spectrum”. (PCB 48)
42 Finally, his solicitors sent Mr Job for medico-legal assessment to surgeon, Mr John O’Brien, who examined Mr Job on 1 October this year. He reported, in a letter of the same date. Mr O’Brien said:
“Current signs now certainly demonstrate limited cervical movement, accompanied by the complaint of pain and cervical tenderness, however there is no clinical evidence of associated nerve root compromise or radiculopathy. X-rays taken immediately following the accident suggested some pre-existing mid-cervical spondylosis, but no evidence of skeletal injury.
These signs would indicate the presence of chronic non-specific cervical pain, possibly associated with aggravation of the pre-existing lumbar spondylosis. The signs in relationship to the complaint of pain in the thoracolumbar region, are in fact now minimal, and certainly not diagnostic of significant specific pathology suggesting the presence of some mild nonspecific chronic pain. Indeed, the history does indicate that this chronic pain is associated with ongoing psychological issues, which have in fact been addressed by an appropriate specialist.” (PCB 80)
43 Mr O’Brien said that Mr Job’s employment:
“would appear appropriate, and although there is lifting involved with this, it clearly is within the bounds of his physical capacity. Indeed I would suggest with appropriate modification, this patient does remain capable of full time employment. Overall the patient now is only very mildly limited in his general, social, domestic and recreational activities, a situation which is likely to continue.” (Ibid)
44 The Transport Accident Commission had Mr Job assessed for medico-legal purposes by orthopaedic surgeon, Dr John Owen, who reported to the Commission’s solicitor by letter dated 15 October 2019 relative to an examination that occurred on the 8th of that month.
45 Dr Owen said:
“Mr Job has signs of cervical spondylosis. I suspect that the current physical problems, that is the limitation in range of movement and the ongoing pain, are an aggravation of an underlying condition.” (Defendant’s Court Book (“DCB”) 18)
46 The doctor, responding to a question about pre-existing or unrelated conditions, said, “He obviously does have pre-existing problems in his neck …”. (Ibid)
47 The doctor referred to “psychosocial issues in that he is depressed and losing confidence both in driving and in his personal affairs”. (DCB 19)
48 The defendant also placed in evidence an assessment made by psychiatric registrar, Dr Holly Anderson, of the Bendigo Health Care Group, in a letter to Mr Job’s general practitioner, Dr Ekeanyanwu, dated 13 July 2007, where she reported on a referral by the general practitioner “for suicidal ideation and depressive symptoms in [Mr Job]”. (DCB 44)
49 According to the report, Mr Job at that time:
“has become increasingly isolative and argued frequently with his wife and friends. His sleep has been interrupted significantly waking every two hours. His alcohol use has been excessive at times consuming up to eight cans of beer on the days he does not work.” (DCB 44)
50 Dr Anderson diagnosed Mr Job as “suffering from a moderate major depressive episode with features of anxiety”. (DCB 45)
51 A further letter from Dr Indranil Chakrabarti, consultant psychiatrist, at the Bendigo Health Care Group, to the general practitioner, reported some progress in Mr Job’s psychological condition, but Dr Chakrabarti said, “I do feel he has residual symptoms of depression”. (DCB 46)
52 A further report to the general practitioner dated 22 July 2008 once again comments on an allegedly excessive alcohol consumption by Mr Job. (DCB 47)
53 The Defendant’s Court Book also contains a letter by way of report to the general practitioner dated 13 August 2013 from Dr Surya Tipirneni, consultant psychiatrist, at the Northpark Private Hospital, who reported Mr Job’s presentation:
“long standing history of depression and anxiety characterised by low mood, tiredness, feeling irritable, depressive ideas of hopelessness, worthlessness, negative thinking, feeling hopeless suicidal at times with marked anxiety, marked decrease in sleep …”. (DCB 49)
54 The doctor said:
“The depression started about 8-9 years ago when he broke up with his first partner after having arguments with her constantly and subsequently the problems started.” (Ibid)
55 There was reference to indebtedness arising out of a failed business venture. (Ibid)
Contentions of the Parties
56 Mr Middleton QC and Ms Myers on behalf of the Defendant opposed the grant of leave. They said, “we can't identify any consequence that meets the 'very considerable' test that arises directly from the motor vehicle accident”. (T53, L7-9) The evidence established that following the accident, Mr Job is working longer hours than before. In addition to his evening work at Steve’s Liquor, he works what is substantially a full-time job for Tip Top Bakeries in the night shift, 2.00am to 8.00am. They calculated his present work periods as 47 hours a week (Ibid, L17-29). Mr Job’s sleep problems ought not, they said, to be blamed upon the accident. His previous medical history shows that he was suffering from sleep disturbance before the accident. As to the arrangements for sleeping, which entailed moving to a room separate from his partner, they said the need to rise at approximately 1.00am every morning would provide an explanation for that, independently of any consequences of the accident. (T57, L15-26)
57 They said that the reports from Mr Job’s treating practitioner should be read as expressing the view that his symptoms had resolved. (T60, L6-11) Next, they took me to the report of the plaintiff’s medico-legal expert, Mr John O’Brien, wherein Mr O’Brien concluded that Mr Job was very mildly limited in general, social, domestic and recreational activities. (T63, L12-14) They referred to the opinion of Dr John Owen to similar effect.
58 Mr Mighell QC and Mr Fogarty, on behalf of the plaintiff, challenged the contention that Mr Job had some significant pre-existing neck condition. They conceded evidence of such was to be found in 2000 and 2008, but the complaint of Mr Job’s neck “killing” him, was, they said, an isolated incident in 2011. An isolated flare up or flare ups, they said, would not equate to a chronic pre-existing problem, conceding that there was a further reference to neck pain in the general practitioner’s notes for August 2013.
59 Next, they said that the credit of Mr Job was not impeached by any video surveillance material (T66, L24-30), nor was there any suggestion in any medical report of exaggeration or embellishment on Mr Job’s part.
60 They referred me to a statement by the Court of Appeal in Transport Accident Commission v Kamel ([2011] VSCA 110), where Kyrou AJA (as his Honour then was), with the concurrence of Warren CJ and Ashely JA, said:
“A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.
The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.” ([67]-[68])
61 They contended that Mr Job should be seen in that light. They referred to other Court of Appeal authorities to similar effect. They said Mr Job should be seen as suffering permanent pain and therefore covered by the principle stated by his Honour. The evidence showed he was taking between six and eight Nurofen per day. (T68, L31-T69, L11) His frequent attendances on chiropractor, Mr Hodgson, were also testament to the permanence of his pain.
62 In reply, Mr Middleton QC and Ms Myers, referred me to a Court of Appeal decision Tatiara Meat Company Pty Ltd vKelso ([2010] VSCA 12, [46]), where a complaint of ongoing pain treated with over-the-counter analgesics (in that case again, Nurofen) was not sufficient to support a finding of serious injury. (T72, L5-25)
Conclusion
63 The body part in question here is the spine, specifically the cervical spine – the neck. Reliance is solely on paragraph (a) of the definition. I found this case perhaps more difficult than usual in these applications to determine. The opinion of the plaintiff’s own medico-legal expert, Mr John O’Brien, that Mr Job “now is only very mildly limited in his general, social, domestic and recreational activities, a situation which is likely to continue” (PCB 80), on one view, might be conclusive in favour of the defendant. Mr O’Brien’s remarks are notable for their focus upon the seriousness of the consequence of injury rather than the injury itself, a key feature of the jurisprudence of “serious injury” which it is easy to lose sight of. Characterisation of an injury, for instance, as “mild to moderate”, is not necessarily fatal to the success of an application if its consequences can fairly be seen to be “very considerable”.
64 I accept the submission of Mr Mighell QC and Mr Fogarty that Petkovski v Galletti ([1994] 1 VR 436) need not trouble us here. Plainly, there was an underlying neck injury, characterised by a number of the examiners as “spondylosis”. However, reference to the general practitioner’s clinical notes demonstrate that the flare ups before the transport accident were occasional in contrast to the situation now.
65 The other consequence which tends against a finding of serious injury is Mr Job’s ability not merely to maintain the intensity of his pre-accident employment, but actually intensify it further, as he has. In doing so, he was acting in accordance with economic necessity, no doubt; but he has displayed an ability to maintain and intensify his manual employment.
66 Ultimately, the fact which I believe brings the balance down in favour of Mr Job ever so slightly, is the constancy of the pain which he reports, to which there was no convincing challenge. In the words of Kyrou AJA in Kamel’s case, “The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”. (Transport Accident Commission v Kamel (Ibid), [68]). Leave is granted.
Costs
67 I have heard no submissions on the question of costs and so I will reserve them.
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