Jofre v TAC
[2023] VCC 1099
•10 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-04108
| ANTONIO JOFRE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | Her Honour Judge Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 15 June 2023 | |
DATE OF JUDGMENT: | 10 July 2023 | |
CASE MAY BE CITED AS: | Jofre v TAC | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1099 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application for injuries sustained in transport accident – Serious aggravation of an underlying spinal condition – Plaintiff worked as stonemason labourer prior to accident – Plaintiff claims pain and suffering and pecuniary loss – Plaintiff’s credibility undermined by inaccurate medical history, pre-accident employment and surveillance footage – Plaintiff unable to work as stonemason or in any other heavy work
Legislation Cited: Transport Accident Act 1986
Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
Bezzina v Phi [2012] VSCA 161
De Agostino v Leatch [2011] VSCA 249
Humphries and Anor v Poljak [1992] 2 VR 129
Petkovski v Galletti [1994] 1 VR 436
Judgment:Plaintiff’s application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Mr A Anderson with Ms V McLeod | Solicitor for the Transport Accident Commission |
HER HONOUR:
1Antonio Jofre, the plaintiff, was a passenger in a car when it was hit by another vehicle on 31 January 2018.
2He has made an application for a serious injury certificate for injuries sustained in that transport accident, pursuant to s93(4)(d) of the Transport Accident Act 1986. The injury he claims he suffered is a serious aggravation of an underlying spinal condition.
3At the time of the transport accident, Mr Jofre was working as a stonemason labourer. He says he is unable to work as a stonemason labourer, or in any other heavy work, as a consequence of the transport accident and that as a result, he has suffered pecuniary loss which is a serious consequence for him.
4The Transport Accident Commission, the defendant, says Mr Jofre is not a reliable witness and his evidence should not be accepted. He had significant underlying disease which would have inevitably meant work as a stonemason labourer, or any similar work, was not sustainable. His current condition is a result of his underlying degenerative disease and any aggravation caused by the transport accident has either resolved or does not meet the test for a serious injury.
5The issues that must be determined are:
(a) Whether Mr Jofre is a credible and reliable witness;
(b) Whether Mr Jofre’s inability to work as a stonemason labourer is a consequence of the transport accident, or would inevitably have resulted from his underlying condition;
(c) Whether the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequences, can be fairly described as “at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”, when compared with other cases in the range of other possible impairments or losses.[1]
[1]Humphries and Anor v Poljak [1992] 2 VR 129
Background
Work
6Mr Jofre’s account of his employment and activities between about 2008 to the date of the transport accident was incomplete and difficult to understand.
7He said in 2008 and 2009 he had worked full-time as a tiler. In 2013 and 2014 he worked at Sydney Airport driving a forklift for Alpha Flight Services. He lived in Argentina for a period in about 2014, returning either at the end of 2014 or the beginning of 2015. He had short periods of work with various employers which he said he obtained through a job agency. In 2015 he was a contestant with some of his family members on a reality television program, The Biggest Loser. After that he said he and his family did “social groups” called Jofre Fitness and charity days but that his work as a personal trainer, both before and after The Biggest Loser, was on a volunteer basis and he did not receive any payment.
8Apart from the 2014 financial year when he was working full-time at Sydney Airport, his earnings from personal exertion in the five years prior to the transport accident were minimal, never amounting to more than $7,000 and generally much lower.
9He said that, notwithstanding his recorded earnings, he did stonemason work or stonemason labourer work on a “volunteer” basis for his family. He said he had been doing stonemason work since he was a kid with his family.[2] He said:
“I can’t remember too far back with working for someone, but I’ve always, you know, I’ve worked with family, and friends of family, for non-monetary, like, non-work, not employment, but – but like, example, in the past my grandfather, when he was alive, he – he would buy me a car, for example, for helping out the family.”[3]
[2]Transcript (“T”) 38, 7 June 2023
[3]T41-42, 7 June 2023
10His father said that apart from the immediate days before the transport accident, Mr Jofre had last worked as a stonemason with him about six months earlier. He said Mr Jofre often worked on larger jobs or when he needed help on weekends. He had worked as a child during school holidays and on weekends and for at least one period of three to four months. Though his father says Mr Jofre was paid for his work, Mr Jofre’s tax records do not demonstrate this.
11Two days prior to his accident, he and his father were engaged as stonemason labourers as contractors for Unistone Stonemasons. The director of Unistone, Neil Skinner, notes that the work Mr Jofre and his father were doing was on a house in Kew. Mr Skinner said he employed other workers to finish the job, which took about six weeks to complete.
12Mr Jofre has not returned to work as a stonemason labourer. Mr Jofre’s father was also injured in the transport accident and has not returned to work as a stonemason. Mr Jofre obtained some work with a company called Probe during the COVID-19 pandemic, providing telephone advice. This was a sedentary job. He has also set up a company which provides catering for functions on an intermittent basis. He estimates that the catering company does about four or five events a year. He describes his catering company as part of a “return to work” plan he has created for himself.
Medical
13Prior to the transport accident, the plaintiff had a history of headaches, chest pain, neck pain and referred symptoms down his left arm:
(a) He started having severe headaches in 2008;[4]
[4]T14, L19–26, 7 June 2023
(b) He had a whiplash type injury while playing football some years prior to the transport accident;[5]
[5]Affidavit of Antonio Jofre sworn 7 August 2019, paragraph 5, Plaintiff’s Amended Court Book (“PACB”) 43
(c) He had left-sided back pain and a lumbar spine x-ray in October 2014;[6]
[6]Report of Dr Ales Aliashkevich dated 24 January 2023, PACB 607 and 622; T16 and 17, L1–8, 7 June 2023
(d) He presented at Werribee Mercy Emergency Department on 31 October 2015 with chest discomfort and palpitations. The hospital records note his history of having a similar episode a few years ago;[7]
[7]Werribee Mercy Hospital Emergency Department Clinical Sheet dated 31 October 2015, Defendant’s Court Book (“DCB”) 4; T18, L25 – T19, L13, 7 June 2023
(e) He had a further presentation at Werribee Mercy on 29 January 2016 with chest pain radiating to left shoulder and left arm;[8]
[8]Werribee Mercy Hospital Emergency Department Clinical Sheet dated 29 January 2016, DCB 5; T20, L14–29, 7 June 2023
(f) In February 2016 he complained of headache and left arm numbness;[9]
[9]Clinical notes of Forsyth Park Medical Centre, DCB 79; T20, L25–29, 7 June 2023
(g) He had an attendance at Adelaide Hospital with palpitations, left arm and left neck pain in about November 2016;[10]
[10]T24, L21–22, 7 June 2023
(h) He had almost daily left-sided headaches for at least six months in 2016 according to the records of Forsyth Park Medical Centre,[11] which he agreed accurately reflected the situation.[12] The pain occurred “suddenly, mostly at night, associated with nausea and vomiting.”[13] He could recall that the pain radiated to his eye region at the time;[14]
[11]Clinical notes of Forsyth Park Medical Centre dated 4 February 2016 and 10 November 2016, DCB 79-80
[12]T20, L20–30, 7 June 2023; T21, L15-20, 7 June 2023
[13]T24, L29–30, 7 June 2023
[14]T24, L27–28, 7 June 2023; Clinical notes of Forsyth Park Medical Centre dated 10 November 2016, DCB 80
(i) He had a cervical spine MRI in November 2016[15] and was noted to have worsening neck pain since a whiplash injury about two years prior while playing football. He was noted to have intermittent radicular pain to left upper arm, worse on left neck rotation, and recurrent pain with symptoms of left cervical radiculopathy;[16]
[15]MRI brain dated 14 November 2016, PACB 662
[16]Clinical notes of Forsyth Park Medical Centre dated 10 November 2016, DCB 80; T24, L23 – T25, L23, 7 June 2023
(j) The MRI showed:
“… loss of normal cervical lordosis, with multi level wear and tear changes, with minor disc bulges, the most significant of which is at C4/5”,
and Mr Adamides opined that:
“compression of the C5 nerve root is most likely responsible for his symptoms.”[17]
[17]Report of Mr Alex Adamides dated 9 March 2017, DCB 8
(k) He had sharp left arm and left neck pain and a racing heart on 19 February 2017 resulting in a further attendance at Werribee Mercy;[18]
(l) He consulted Mr Alex Adamides in March 2017. Mr Adamides notes a history of neck pain and left-sided brachialgia since January 2016;
(m) MRI dated 14 March 2017 showed:
“reversal of the normal cervical lordosis with multilevel degenerative changes and at C4-5 there was again a small broad based posterior disc prolapse which was indenting the ventral cord.”[19]
(n) On 15 May 2017 Mr Jofre saw Mr Adamides, who advised him to avoid forceful neck manipulations, heavy lifting, bending and twisting of the neck, and requested repeat MRI.[20] He was advised not to play contact sports.
[18]Report of Dr Dayani Ruberu dated 19 February 2017, DCB 7; T24, L6–22, 7 June 2023; T30, L20–26, 7 June 2023; T31, L3–7, 7 June 2023
[19]Report of Mr Alex Adamides dated 1 May 2019, PACB 582-582
[20]Report of Mr Alex Adamides dated 9 March 2017, DCB 8; T32, L28–31, 7 June 2023
Credit
14The defendant says Mr Jofre is not a credible witness and his evidence ought not be accepted.
15In particular the defendant points to the following:
(a) He failed to inform professionals of, or downplayed, his significant and long-term history of past neck pain, left arm pain and paraesthesia, and headaches.[21] He could not recall in cross-examination what he had told doctors about his pre-existing symptoms and said he might have forgotten about his symptoms;[22]
(b) He did not mention his weight gain of at least 30kg in the period between his participation in The Biggest Loser in 2015 and the accident in January 2018. Furthermore, he stated or implied that his weight gain occurred after the accident. He was around 89.5kg after the Biggest Loser in July 2015 and was 119kg on 6 April 2017. The plaintiff accepted that he was steadily gaining weight in the period between 6 April 2017 3 May 2018, and when he weighed 130kg.[23] He was somewhere between 119kg and 130kg at the time of the accident on 31 January 2018;[24]
(c) He made misleading representations about his pre-accident employment; by repeatedly asserting that he had been employed as a stonemason for many years[25] and that he was a fitness instructor or personal trainer.[26] The plaintiff stated in his further affidavit that “it became clear that I would never be able to return to … the fitness industry”.[27] Under cross-examination, however, the plaintiff said that after obtaining his personal training qualification in 2006, he had engaged in “voluntary work” to “gain experience” and had not been paid for such work.[28] The plaintiff had only had paid work as a stonemason’s labourer with his father for two days prior to the accident.[29] He did not receive any income in the period from 2011 from working as a stonemason or a stonemason’s labourer[30] and was not a qualified stonemason.[31] He accepted that the information in his tax returns for the 2011 to 2017 financial years was accurate.[32]
(d) Surveillance footage showed him performing a number of activities he had said in his affidavit he could not do. In his 2019 affidavit he said the ongoing pain and restrictions in his neck prevent him from being able to kick a football and exercise. He said he experienced increased pain when, for example, lifting a laundry basket or securing his son in a seat or lifting him.
[21]See, for example: report of Professor Stephen Davis dated 21 July 2020 where Professor Davis notes, “He is adamant that he was quite well before the accident”, PACB 111; report of Professor Richard Bittar dated 24 May 2021 whereby the plaintiff reports, “He consulted with Dr Adamides in May 2018, having seen Dr Adamides several years previously also in relation to his cervical spine” PACB 600; report of Mr Gary Speck dated 21 April 2023 where Mr Speck records that the plaintiff “said he had never previously had trouble with pain in his neck or across his left chest or arm”, DCB 23
[22]T50, L27 – T51, L12, 7 June 2023; T58, L11–21, 7 June 2023; T59, L10–18, 7 June 2023
[23]T35, L26–30, 7 June 2023
[24]See, for example: report of Dr Janaka Seneviratne dated 20 March 2019, who writes that the plaintiff “stated that he has put on about 40kg since the accident”, PACB 116; report of Professor Stephen Davis dated 21 July 2020 where he records, “He estimates that he had lost up to 45kg in 2015 [on The Biggest Loser] but unfortunately he regained this weight ‘and more’ after the accident”, PACB 111; report of Associate Professor Andrew Carroll dated 4 September 2020 where he notes that “Mr Jofre confirmed that at the time of the accident, his weight was between 95kg to 105kg but that his weight then increased to a peak of 148kg. He attributed the weight gain to ‘80% lack of being able to move freely’ and also to a lesser degree ‘change of lifestyle, the depression’”, PACB 100
[25]See, for example: further affidavit of Antonio Jofre sworn 8 March 2023 at paragraph 12 where the plaintiff refers to “my pre-transport accident employment as a stone mason”, PACB 16; report of Dr Nathan Ingram dated 6 March 2019 where Dr Ingram noted that “Mr Jofre had worked most of his life in the construction industry as a tiler/stonemason”, PACB 122; report of Professor Davis dated 21 July 2020 where Professor Davis writes, “The patient told me that he was working full-time without any restrictions in the period leading up to this accident in January 2018, working as a tiler and stonemason”, PACB 111; report of Dr Ales Aliashkevich dated 24 January 2023 where he writes, “Antonio has been employed full-time as a stonemason “all his life” in the family business. He usually worked 40+ hours per week”, PACB 607; report of Mr Gary Speck dated 21 April 2023 where he takes a history that after school, “He had subsequently done a personal training course ... and said [he] ‘worked in the family business’ which he described as being [a] stonemason”, DCB 23
[26]See, for example: report of Dr Dayani Ruberu dated 19 February 2017, DCB 6; and reports of Mr Alex Adamides dated 9 March 2017, DCB 8, and 11 April 2019, DCB 12
[27]Further affidavit of Antonio Jofre sworn 8 March 2023, [14], PACB 17
[28]T18, L12–21, 7 June 2023
[29]See, for example, T98, L28–29, 7 June 2023
[30]T46, L29–31, 7 June 2023
[31]T37, L29–31, 7 June 2023
[32]T43, L29 – T46, L9, 7 June 2023, and T46, L23–31, 7 June 2023
16I accept that some of the medical reports record a history provided by Mr Jofre which fails to mention his significant pre-existing back and neck issues.
17The history provided to doctors may reflect a deliberate or subconscious attempt by Mr Jofre to elevate the consequences of the transport accident and minimise the impact of his pre-existing disease. This may be because, with the passage of time, he recalls the pre-accident period as being rosier than it actually was, or may reflect the fact that in the immediate six to eight months before the accident, he was not having significant symptoms from his underlying condition.
18The history provided to doctors depends, in large part, upon the questions asked by those doctors. A statement by the plaintiff that he was “well” before the transport accident, or had no health problems, may reflect a lay-person’s understanding of his own state of health, rather than a reflection on his medical condition.
19I do not think a self-assessment by a plaintiff that he was “well” in a medico-legal exam significantly undermines his credit. In the period immediately prior to the transport accident, he had not had any medical attendances for seven or eight months and was able to work, albeit for a short period, as a stonemason labourer. In those circumstances it may have been reasonable for Mr Jofre to consider himself “well”, notwithstanding that he had an underlying medical condition.
20I do consider Mr Jofre was misleading about his weight gain. Although he said the rate of weight gain increased after the transport accident, it is difficult to know whether this is accurate, given his attribution of all his weight gain to the transport accident when this is clearly incorrect. However, I do not consider this to be a matter of enormous significance. I accept, as submitted by counsel for Mr Jofre, that it is a human foible to blame external factors for unwanted weight gain. It adds to my general impression that Mr Jofre has, either deliberately or subconsciously, exaggerated the consequences of the transport accident and downplayed the consequences of the pre-existing injury.
21In terms of his pre-injury employment, he has provided a confusing and incomplete picture. I have little sense of what he was doing in the years, let alone months, before the transport accident. I accept the defendant’s criticism that he provided a misleading representation of his employment history to medical examiners, variously creating the impression that he had worked for many years as a stonemason or as a fitness instructor. Even if, as he says, he had worked from time to time helping out family and friends in stonemason work, he must have realised that the impression he would give was of full-time, long-term employment, which appears not to be correct. Similarly he created an impression that his fitness work comprised paid employment as a personal trainer, rather than “volunteer” work to gain experience.
22Mr Jofre said that, in terms of the surveillance footage, there has been a substantial improvement in his ability to do things like kick a football and he has now learnt how to overcome some barriers with his pain threshold. This is a reasonable explanation, though it does not explain why in his affidavit of 8 March 2023 he confirmed that the contents of his previous affidavit of 7 August 2019 remained true and correct.
23These matters do cause me to have reservations about the accuracy and reliability of Mr Jofre’s evidence. I have formed the view that he has tended to give evidence to bolster his case and to minimise the impact of his pre-existing injury.
24This causes me accept his evidence of his consequences less readily and to look for external corroboration of his post-injury consequences.
What consequences arise from the transport accident?
25Mr Jofre relies primarily on his inability to undertake heavy work, particularly as a stonemason labourer or stonemason, as evidence that his injury meets the test of “very considerable” when compared with others in the range of possible injuries.
26The defendant does not dispute that Mr Jofre cannot work in stonemason work or other heavy labour.
27The defendant says Mr Jofre has failed to disentangle the consequences that arise as a result of the transport accident from the consequences of his underlying degenerative disease. The defendant also submits that, in any event, he would inevitably have been unable to continue work as a stonemason, given his underlying condition and the advice of his treating neurosurgeon that he should avoid heavy work.
Medical Evidence
Mr Adamides
28Mr Alex Adamides, neurosurgeon, saw Mr Jofre in February 2017. At that time an MRI scan showed loss of normal cervical lordosis with multilevel wear and tear and minor disc bulges, most significantly at C4-5. There was some foraminal stenosis at C4-5 and compression of the nerve root at C5. He was experiencing numbness and brachialgia down the arm.
29A repeat MRI in March 2017 largely confirmed the earlier MRI findings. By May 2017 Mr Jofre reported to Mr Adamides that his neck pain was still present but overall he was improving and had no numbness or brachialgia. Mr Adamides diagnosed cervical spondylotic changes with disc prolapses at C4-5 and C5-6. He considered that based on Mr Jofre’s symptoms, he could be managed conservatively; that is, without surgical intervention. Mr Adamides advised Mr Jofre that he must avoid heavy lifting, significant bending or twisting of his neck and must never allow forceful manipulation of his spine.
30Mr Adamides saw Mr Jofre after the transport accident. Mr Jofre had no evidence of cord compression and no severe radiculopathy. The MRI was largely unchanged.
31Mr Adamides considered that based on his history of increasing neck pain and sensory changes affecting his upper limbs, the transport accident may have exacerbated his spinal pathology. He renewed his recommendation to avoid heavy lifting. He noted that the natural history of cervical spinal spondylosis is often that of exacerbation and remission. He did not find that Mr Jofre was progressively worse.
32I understand Mr Adamides’ opinion to be that Mr Jofre’s reports of increased pain and upper limb symptoms are consistent with an exacerbation of his underlying condition, which may have been caused by the transport accident, but there is no progression of the disease. The underlying disease has not progressed as a result of the transport accident, notwithstanding that it may have become more symptomatic.
33Mr Adamides has had the benefit of seeing Mr Jofre both before and after the transport accident. He does not rule out the transport accident as the cause of the aggravation of Mr Jofre’s condition, but also does not say that the transport accident is clearly the cause of that aggravation, and he notes that the natural history of the disease is for aggravation and remission.
Dr Lumbes
34Mr Jofre’s treating general practitioner, Dr Getulio Lumbes, notes that after the transport accident, Mr Jofre consulted a general practitioner on 3 February 2018 with worsening neck and left lower back pain. He had pain on turning his neck to the left. On 13 February 2018 he had radicular tingling pain to the whole left arm, worse on flexion or extension of the neck, which had started on 4 February 2018. Dr Lumbes opines that the stenosis, foraminal narrowing and disc bulge seen on MRI are the cause of his incapacity. He notes that his pre-existing cervical radiculopathy did not affect his activities of daily living, but after the transport accident Mr Jofre was more symptomatic, more restricted and relatively disabled. He concluded he was unfit for duties as a stonemason and had a poor prognosis.
35Dr Lumbes is a treating doctor and as such his opinion has significant weight. I note that, despite Mr Jofre’s pre-existing condition which at times was sufficiently painful to warrant neurosurgical referral and investigation, Dr Lumbes’ observations of Mr Jofre were that the pre-existing condition did not affect his activities of daily living. They did impact his football career. Nevertheless, there is no evidence that his pre-accident injury impacted his work. I place significant weight on Dr Lumbes’ observations that, after the accident, Mr Jofre was more symptomatic and restricted.
Professor Bittar
36Neurosurgeon Professor Richard Bittar provided a medico-legal opinion. He noted that Mr Jofre had been treated conservatively in the past and that his previous neck-related complaints did not have a significant impact on his work capacity, or his social, domestic or recreational activities. He noted that Mr Jofre no longer plays contact sport such as football and that he was previously employed as a stonemason. Professor Bittar reviewed the MRI dated 22 March 2018. Importantly, however, he did not review the MRIs that pre-date the transport accident. His assessment of Mr Jofre appears to be based on Mr Jofre’s instructions that, prior to the transport accident, his neck condition did not have any significant impact on his work capacity, and that he was working as a stonemason.
37However, although Mr Jofre had some periods of working as a stonemason, he was only working in that capacity for a few days before the injury. The history provided to Professor Bittar is not an accurate reflection of Mr Jofre’s pre-injury status. Professor Bittar appears not to have reviewed the pre-injury MRIs and therefore he does not appear to have analysed the claimed aggravation. Rather, he attributes the radiological findings to the transport accident.
38I accept his opinion, common to all the experts, that Mr Jofre cannot work as a stonemason now but am not satisfied that his opinion that this is as a result of the transport accident can be accepted, given the inaccurate history he was provided and the fact he had not reviewed the pre-accident MRI.
Dr Blombery
39Consultant physician Dr Peter Blombery assessed Mr Jofre for medico-legal purposes. Dr Blombery was aware that Mr Jofre had commenced stonemason work in the week of the accident and has noted other work history as a forklift driver. He diagnosed aggravation of a pre-existing degenerative condition in the cervical spine complicated by a pain syndrome in the affected area where there is central sensitisation of pain nerve pathways. He notes that this is not uncommon in patients with chronic neck and back pain and that the injury has a substantial organic basis, overlaid with a pain syndrome. He considers Mr Jofre unfit for pre-injury duties.
40Dr Blombery reviewed the surveillance footage which shows Mr Jofre participating in a number of activities, including football coaching where he bends, lifts balls, kicks and jogs. Dr Blombery maintained his opinion that Mr Jofre is unfit for pre-injury duties.
41Dr Blombery appears to have a more accurate work history than Professor Bittar and understands that Mr Jofre’s work as a stonemason appears to have been for only a short time prior to the transport accident. Given that the findings on MRI do not demonstrate any progression of disease since 2017, Dr Blombery’s diagnosis of pain syndrome provides a logical explanation for Mr Jofre’s symptoms.
Professor Davis
42Neurologist Professor Stephen Davis assessed Mr Jofre. He noted the history provided that Mr Jofre had qualifications as a fitness instructor but had mostly worked as a stonemason and tiler. Mr Jofre provided instructions that his symptoms that had resulted in the MRI investigations in 2016 and 2017 had settled prior to the transport accident; he was not on any analgesics at that time; and he was working full-time as a stonemason. Professor Davis had not seen the imaging. He noted the symptoms were suggestive of symptomatic radiculopathy but without any objective features. He considered Mr Jofre’s condition stable.
43Professor Davis does not provide any opinion about the exacerbation or aggravation of the underlying condition, and consequently his opinion is of little assistance in the task I must undertake.
Dr Aliashkevich
44Neurosurgeon Dr Ales Aliashkevich assessed Mr Jofre and reviewed his scans and other medical assessments. He considered the transport accident was a materially contributing factor to a significant exacerbation of Mr Jofre’s condition. He formed this opinion, in part, because of Mr Jofre’s ability to work before the transport accident full-time as a stonemason, as well as his assessment of the medical records and imaging results and the fact that pain was chronic and refractory after the accident.
45He considers Mr Jofre unfit for work as a stonemason.
46Dr Aliashkevich’s opinion is based on his incorrect assumption that Mr Jofre had a history of working full-time as a stonemason prior to the injury. This is one of the elements in his forming the opinion that the transport accident is the significant contributing factor to Mr Jofre’s current condition.
47It is not clear that Mr Aliashkevich would have formed the same opinion if he had understood the stonemason work was for only two days. This causes me to treat Dr Aliashkevich’s opinion with some caution.
Dr Seneviratne
48Neurologist Dr Janaka Seneviratne opines that Mr Jofre has suffered cervical spinal injuries as a result of the car accident which have become complicated by a chronic pain condition. He does not opine on the aggravation of the condition, nor explain what cervical spinal injuries are a result of the transport accident, and consequently his opinion is of little assistance.
Mr Speck
49Neurosurgeon Mr Gary Speck assessed the plaintiff and obtained a careful and comprehensive history. He also reviewed the imaging and medical records.
50Mr Speck reported no evidence of radicular neurologic deficit or myelopathy on examination. He diagnoses a soft tissue injury at the time of the transport accident, and ongoing symptoms of a constitutional nature. He considers the aggravation of symptoms caused by the transport accident to have resolved, probably within 12 weeks, and the ongoing symptoms to be those of the underlying constitutional condition. He does not expect the soft tissue injuries to be the cause of any ongoing incapacity.
51Like Dr Blombery, Mr Speck’s opinion also provides a logical explanation for Mr Jofre’s ongoing symptoms, being the natural progression of underlying disease, in the context of a comprehensive understanding of Mr Jofre’s medical and work hsitory.
Analysis
52Where the claimed injury is one of an aggravation of a pre-existing condition, the plaintiff must establish what injury was caused by the accident. An analysis must then be made of the extent of impairment of a body function before and after the relevant injury. The additional impairment caused by the accident and its consequences must be “serious” and long term.[33]
[33]Petkovski v Galletti [1994] 1 VR 436, [443]; De Agostino v Leatch [2011] VSCA 249, [11]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309, [31]–[33]; Bezzina v Phi [2012] VSCA 161, [23]
53In the present case I must consider how Mr Jofre’s underlying condition affected him “as he was and would likely have been absent the injuries he sustained in the transport accident”.[34]
[34]Bezzina v Phi [2012] VSCA 161, [23]
54The defendant says:
(a) the plaintiff was suffering from pre-existing cervical spondylosis at the time of the subject transport accident;
(b) any consequences or limitations that the plaintiff is currently experiencing are caused by this underlying, constitutional, pre-existing condition as opposed to the transport accident; and
(c) if any additional impairment and consequences do relate to the transport accident (which is not admitted), any such impairment or consequences cannot be described as “long term” or “serious” when stripped away from the consequences of the pre-existing underlying condition.
55Mr Jofre’s case is that, regardless of his underlying condition, he was working as a stonemason labourer at the time of the accident and he can no longer do that work. Whether he would have continued in that employment until retirement age is beyond the scope of the inquiry I must make at this stage of the proceedings and is more appropriately a matter for trial.
56I have made findings that Mr Jofre is not an entirely reliable witness. This does not mean I disregard his evidence entirely. I make the following findings of fact.
57Mr Jofre had a pre-existing underlying condition of cervical spondylosis as shown on MRI prior to the transport accident.
58Prior to the transport accident, he had been advised not to play contact sports and he had ceased playing football at that time.
59Prior to the transport accident, he had been advised to avoid heavy lifting and twisting movements of the neck. Despite this advice, he had undertaken stonemason labouring work for at least a few days and possibly more.
60He reported to Dr Adamides in May 2017 that his condition seemed to be improving and he was no longer getting numbness in the left arm of radiculopathy. Given the absence of further medical attendances between that occasion and the transport accident, I am satisfied that, in the period between his last attendance on Dr Adamides and the transport accident, if his underlying condition was causing him difficulty, it was not significant and not sufficient to interfere with his work or his activities of daily living.
61Since the transport accident, he has pain and limitations that are more significant and have a greater impact on him than they did before the transport accident. I accept the evidence of Dr Lumbes in this regard.
62I accept the evidence of Dr Adamides that the natural history of his condition is one of exacerbation and remission.
63Since the transport accident, his condition has fluctuated to some extent. For example, he has seen some improvement since his 2019 affidavit in that he can kick a football and undertake some exercise.
64However, he remains unable to undertake work as a stonemason, or any other heavy work. This is a new consequence that has arisen since the transport accident.
65On the balance of probabilities, this is a consequence that arose as a result of the transport accident. This is because, although he had an underlying condition, he was still able to work as a stonemason labourer for some period of time prior to the transport accident. There is no evidence that the underlying condition would inevitably have progressed to the point at which he now finds himself. It may have continued to fluctuate between aggravation and remission, or it may have remained in remission.
66For a period of at least months prior to the transport accident, Mr Jofre had not attended anyone for neck pain, he was not taking any medication, and he was able to work in physically demanding work.
67His underlying condition is now consistently symptomatic, and although there has been some improvement since 2019 in that he can kick a football and exercise lightly, he remains incapacitated for heavy work. This may be, as Dr Blombery opines, as a result of a pain syndrome, or may be the consequences of the soft tissue injury he sustained in the transport accident. However his underlying condition has not remitted back to pre-accident levels. Although the natural history of fluctuation and remission has continued, the base line of symptomatic injury is now significantly higher that pre-accident.
68Mr Jofre has suffered an aggravation of his underlying condition which persists, and which precludes him from heavy employment of the kind he was carrying out at the time of the transport accident.
69I am mindful that a finding of serious injury is a gateway provision only. Mr Jofre may well struggle to satisfy a court that his inability to work as a stonemason labourer has resulted in a quantifiable economic loss. He may also struggle to establish that he would have been able to continue to work as a stonemason or tiler for the foreseeable future, particularly as his father is no longer undertaking this work.
70However, these matters are beyond the scope of this application. For the purposes of this application, I must be persuaded that Mr Jofre has suffered an aggravation which is itself a serious injury. I am satisfied that as a result of the transport accident Mr Jofre has suffered an aggravation of his underlying condition that has resulted in him being unable to undertake heavy work and this is a consequence for him which meets the test of being at least “very considerable” and certainly more than “significant” or “marked’”, when compared with other cases in the range.
71I am also satisfied that the impairment is long term given that it has now persisted, albeit with some fluctuation, for more than five years.
72Accordingly, Mr Jofre has leave to bring common law proceedings for pain and suffering and pecuniary loss.
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