Karagiannis v Transport Accident Commission
[2023] VCC 1231
•21 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-20-02147
| ANASTASIOS KARAGIANNIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2023 | |
DATE OF JUDGMENT: | 21 July 2023 | |
CASE MAY BE CITED AS: | Karagiannis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1231 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – whether injury caused by transport accident – previous transport accident – previous injuries – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Richards v Wylie (2001) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Abbas v Transport Accident Commission [2015] VSCA 217; State of Victoria v Glover [1998] VSCA 93; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie KC with Mr B Johnson | Zaparas Lawyers |
| For the Defendant | Mr P Elliott KC with Mr D O’Brien | Solicitor to the Transport Accident Commission |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”), for injury suffered by the plaintiff in a transport accident which occurred on 1 May 2012 (“the transport accident”).
Relevant legal principles
2Section 93(6) of the Act provides that a court must not give leave under ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
3For the purposes of this case, the definition of “serious injury” as set out in s93(17) of the Act is:
“‘Serious injury’ means –
(a) serious long-term impairment or loss of a body function … .”
4The plaintiff’s case is that, by reason of the transport accident, he suffered injury to his spine, particularly the cervical spine, together with an injury to the right shoulder, right arm and right hand. The plaintiff also relies on an injury to his central nervous system causing a condition known as “central sensitisation”. While the Particulars of Injury had originally referred to Post-Traumatic Stress Disorder and psychological injury, during the course of the hearing, Senior Counsel for the plaintiff clarified that the psychological injury was relied upon only in a Richards v Wylie[1] sense.
[1](2001) 1 VR 79
5In forming a judgment as to whether the consequences of an injury are “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’? … .”[2]
[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
6It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[3]
[3]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]; Abbas v Transport Accident Commission [2015] VSCA 217 at paragraphs [36]-[39]; State of Victoria v Glover [1998] VSCA 93 at paragraph [30].
7In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, as set out in s93(17), the relevant injury must also be long term.
8The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
9The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[4] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[5] It has been held that the task of assessing the pain and suffering consequences of an injury is largely a question of impression and value judgement.[6]
[4]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard”, a serious injury for the purposes of the Act.
[5]Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[6]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
10In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[7]
[7]See, generally, HuntervTransport Accident Commission [2005] VSCA 1 at paragraphs [23]-[26].
11It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[8]
[8]PetkovskivGalletti (supra)
12Applying the principles set out in Petkovskiv Galletti, in an application like this, where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the aggravation of that injury, or the consequences of the additional injury, which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff by comparing the plaintiff’s condition before and after that injury.[9] If I am satisfied that the additional impairment is “serious” and long term, then the plaintiff will have demonstrated that he is suffering from a “serious injury” under the Act.[10]
[9](Ibid) at 444
[10]Ibid
13The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined.
14In addition, both parties relied upon medical reports and other materials which were contained within Court Books filed before the hearing. By reason of the volume of material contained with the Court Books, I requested that the parties separately tender each of the documents on which they relied. References to the relevant exhibits will be made in the footnotes to this judgment.
15I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
Background
16The plaintiff is fifty-six years old.[11] He lives with his second wife and their two children. He completed schooling to Year-12 level and then completed a Bachelor degree at Swinburne in Engineering (Electronics and Communications). He commenced working in systems engineering and since 1998, has been self-employed as an IT consultant/systems engineer.[12]
[11]Ex P2, paragraph [3]; Plaintiff’s Amended Court Book (“PACB”) 13; Ex P4, paragraph [3], PACB 23
[12]Ex P2, paragraphs [4]-[10], PACB13-14
The accident
17The plaintiff described the transport accident in the following way:
“I was involved in a transport accident on 1 May 2012.
I was driving along Thompsons Road in Bulleen when I was cut-off by a vehicle travelling in the opposite direction which had attempted a right-hand turn over my lane to access a service road on the other side. The vehicle hit the front right side of my vehicle.
I was able to take myself home.
In the hours after the accident, I became aware of neck pain radiating down my right arm as well as my right hand, bilateral shoulder pain and some back ache. The back ache has since resolved, as has the left shoulder pain.
I reported the injuries to Doncaster Police Station on or around 2 May 2012. I also lodged a TAC claim in or around August 2012, which was accepted.”[13]
[13]Ex P2, paragraphs [11]-[15], PACB 14
Medical treatment since the accident
18Following the accident, the plaintiff engaged with his general practitioner (“GP”) and received conservative treatment. Initially, he took a significant amount of medication on a regular basis (Tramadol, Mobic, Lyrica or over-the-counter analgesia) and engaged in physiotherapy and chiropractic treatment. He also underwent numerous radiological scans.[14]
[14]Ex P2, paragraphs [16]-[17], PACB 14-15
19He found that while Lyrica helped his pain, he experienced side effects such as blurred vision, nausea and weight gain.[15]
[15]Ex P2, paragraph [26], PACB 17
20He first saw Mr Rohan Price, orthopaedic surgeon, in relation to the injuries which he suffered in the transport accident, on 29 January 2013. He had previously seen Mr Price in relation to an unrelated shoulder injury, the details of which are referred to below.
21Mr Price gave him a referral to undergo an MRI scan of his right shoulder and it was suggested that he see a neurologist. He underwent an ultrasound-guided injection of anaesthetic and cortisone into the subacromial bursa on 28 March 2013.[16] It was otherwise recommended that he continue with conservative treatment.[17]
[16] Ex P9, PACB”) 95
[17]Ex P2, paragraph [22], PACB 15-16
22In March 2013, he saw neurologist, Dr Steven Ng, and underwent some further scans, including an MRI scan of his cervical spine. Dr Ng saw him on 14 March 2013 and told him that the scans showed evidence of radiculopathy at the C5-6 level in his spine. He was referred to Dr Terence Lim for ongoing pain management.[18]
[18]Ex P2, paragraph [23], PACB 16
23He first saw pain specialist, Dr Lim, on 26 June 2013. Dr Lim diagnosed him as suffering from an organic injury called “central sensitisation”, which had developed as a consequence of the injuries he suffered in the transport accident. Dr Lim said that as a result of this condition, the plaintiff would continue to experience chronic pain into the future.[19]
[19]Ex P2, paragraph [24], PACB 16
24Under Dr Lim’s care, the plaintiff participated in a pain-management program over twelve weeks, as an outpatient at North Eastern Rehabilitation Centre, which program included physiotherapy, hydrotherapy, occupational therapy and exercise physiology. During this time, he also engaged with a psychiatrist who specialised in pain management.[20]
[20]Ex P2, paragraph [24], PACB 16
25On 21 October 2014, he underwent an acromioclavicular joint steroid injection on the referral of Dr Ng. This did not reduce his pain.[21]
[21]Ex P2, paragraph [24], PACB 16
26Throughout 2015 and 2016, he consulted a gastrointestinal surgeon and also an ENT surgeon. This was because he had developed problems swallowing and also a dry mouth. It was explained to him that his symptoms were probably due to anxiety. He believes that he did not have those problems prior to the transport accident. At the time, he was under a lot of pressure and stress because of pain and work restrictions.[22]
[22]Ex P2, paragraph [27], PACB 17
27Since this initial consultation, he continued to engage with Dr Lim for review approximately every six months until late November 2020.[23] He ceased seeing Dr Lim in November 2020, as he was told that he “needed to learn to live with” his chronic pain condition. He was also told by Dr Lim that further treatment options were limited.[24]
[23]Ex P2, paragraph [25], PACB16
[24]Ex P3, paragraph [10], PACB 25
Prior accidents and injuries
28In about 1992, the plaintiff was in a significant transport accident, as a result of which his first wife, sister, niece and nephew all died.[25]
[25]Ex P2, paragraph [7], PACB 14
29As a result of that transport accident, the plaintiff sustained multiple physical and orthopaedic injuries, including injuries to his lower back, pelvis, right knee and ribs. After a long period of rehabilitation, the physical injuries healed. He was strong enough to play tennis, go scuba diving and be active.[26] He had developed an interest in scuba diving and became certified as an open-water diver in around January 2011. His first official dive after certification was in around January 2012. As he had young children at that time, he found it hard to find the time to do much scuba diving.[27] At the time of the transport accident in May 2012, he had recovered from the physical injuries that he sustained in 1992 and was engaged in no physical or psychological treatment for those injuries.[28]
[26]Ex P2, paragraph [33], PACB 18
[27]Ex P3, paragraph [17], PACB 27
[28]Ex P2, paragraph [33], PACB 18
30GP notes record that the plaintiff was involved in a motor vehicle accident in about March 2011, when he was stationary. He understands that the note says:
“… was hit from behind and thinks his head has hit head rest. Developed tingling in the neck which lasted 1 to 1 and a half hours and this has almost settled. OE neck - fairly good ROM, nil focal spinal tenderness”.[29]
[29]Ex P2, paragraph [35], PACB 18
31The plaintiff does not specifically remember this tenderness, but accepted that the note was accurate.[30]
[30]Ex P2, paragraph [35], PACB 18
32In late 2011, he had a cortisone injection into his right bicep after he developed some discomfort there from playing tennis.[31]
[31]Ex P2, paragraph [34], PACB 18
33He saw a specialist, Mr Price, throughout 2011 and early 2012, for intermittent problems with his right shoulder that were unrelated to the transport accident. In early 2012, he had surgery on his right shoulder to address this issue. He felt he had recovered well from that injury at the time of the transport accident. He was largely pain free. He had returned to playing tennis.[32]
[32]Ex P2, paragraph [21], PACB 15
34He understands that the clinical notes of his GP on 2 May 2012 refer to him as having been involved in four accidents in two years, including the subject transport accident. The note refers to the fact that he had tenderness in the neck with the other accidents. The plaintiff’s recollection is that, while he was involved in some earlier accidents, he would refer to them as only “bingles”. He said that any minor discomfort he experienced from those incidents had resolved quickly.[33]
[33]Ex P2, paragraph [36], PACB 19
35At the time of the transport accident, he did not have any pain in his neck or numbness and pain down his arm. Prior to the transport accident, to the best of his recollection, he had not experienced the type of pain he now experiences from his neck down into his right arm.[34]
[34]Ex P2, paragraph [37], PACB 19
Subsequent Injury
36About one week after the transport accident, the plaintiff slipped on some food at a shopping centre and landed on his left buttock. At the time, he experienced some soreness in his back and his GP referred him to have a CT scan of his lumbar spine.[35]
[35]Ex P2, paragraph [38], PACB 19
37He no longer experiences any pain in his lower back.[36]
[36]Ex P2, paragraph [38], PACB 19
38He did not experience any increase of the pain in his neck or right arm which had been present since the transport accident.[37]
[37]Ex P2, paragraph [38], PACB 19
Consequences of injuries suffered in the transport accident
Experience of pain
39He continues to experience constant pain in the right side of his neck which radiates down his right arm to his hand. The pain in the arm is a tingling-type sensation. It can feel cold and numb. The pain fluctuates in intensity depending on what he is doing.[38]
[38]Ex P2, paragraph [39], PACB 19
40He gets headaches when the neck pain radiates up into his head about once per week.[39]
[39]Ex P2, paragraph [40], PACB 19
41Various physical activities make his pain and symptoms worse, such as the repetitive pushing and pulling involved in mowing the lawn and heavier lifting.[40]
[40]Ex P2, paragraph [41], PACB 19
42He is temperature sensitive in his neck and down the right arm. Weather also has an impact on his pain, with the cold weather making the pain worse.[41]
[41]Ex P2, paragraph [46], PACB 20
43He is able to undertake many activities, however his neck and right shoulder pain each “flare up” without notice and normally with activity. This results in him having to “pace” himself and limits his physical activity. He then has to wait until his pain “settles down”.[42]
[42]Ex P3, paragraph [7], PACB 24
44When the pain “flares up”, this can last anywhere from two to three days.[43]
[43]Ex P3, paragraph [15], PACB 26
45Because of this, he largely avoids undertaking strenuous physical tasks. He now has to take time to recover from physical activity, whereas before the transport accident he did not have to do this.[44]
[44]Ex P3, paragraph [7], PACB 24
Sleep
46His sleep is affected by the physical pain and restrictions from which he suffers. This can happen up to several times per week. When he is woken by pain, this will last anywhere between fifteen minutes and up to one hour. He will often take Nurofen, Panadol and Aspirin and try to walk around, before attempting to get back to sleep.[45]
[45]Ex P3, paragraph [21], PACB 28-29
47As a result of his interrupted sleep, he often wakes unrefreshed in the morning and has difficulty concentrating.[46]
[46]Ex P3, paragraph [21], PACB 28-29
Medication and treatment
48Other than the pain management program, he has continued to engage in conservative treatment over the years. He also takes medication on a regular basis.[47]
[47]Ex P2, paragraph [27], PACB 27
49He continues to perform stretching exercises, which he learned in his pain-management program. He performs these exercises on a regular basis, every few days, but performs them more frequently when he has “flare ups” in his neck and separately, in his right shoulder and arm.[48]
[48]Ex P3, paragraph [14]
50He continues to use Panadol and Aspirin two to three times per week and Nurofen, on average, twice per week.[49] He gave up using stronger medication a few years ago. He was using Tramadol quite regularly and started experiencing side effects, such as a dry mouth and stomach pains. He also developed kidney stones at one stage, which required medical intervention in the form of surgery. He made the decision to put up with increased pain rather than having to rely on strong medication for the foreseeable future, which might cause other problems.[50]
[49]Ex P4, paragraph [7], PACB 173
[50]Ex P2, paragraph [32], PACB 17
51He has continued to experience problems with swallowing and a dry mouth, but not to the same degree. These problems improved since ceasing the stronger medications, but he continues to experience a dry mouth periodically.[51]
[51]Ex P3, paragraph [12], PACB 25-26
52On 10 February 2023, he underwent a right C5-6 epidural steroid injection after being referred by Dr Wai Foong Hooi, neurologist. He had discussed the pros and cons of this procedure with Dr Hooi, who told him that the procedure may help, but it may not. He found that the procedure was uncomfortable and amplified his pain experience in both his neck and right arm, before the pain then settled back down to the level it had been prior to the injection.[52]
[52]Ex P4, paragraph [6], PACB 173
53He performs stretching exercises and paces his work around the week so that he does less work on days when he is experiencing more pain. He otherwise spreads the work out through the week. He started doing this after the pain-management course and has continued doing this ever since.[53]
[53]Ex P4, paragraph [8], PACB 173
Activities of daily living
54Because he has young children, it is “not really an option” for him not to help his wife around the house with housework. For this reason, he continues to help with housework, but does so in the knowledge that he will experience increased pain afterwards. When he does help his wife, he is much slower than he used to be.[54]
[54]Ex P2, paragraph [43], PACB 20
55If he overdoes things, he will experience increased pain in his cervical spine, down his right shoulder and into his arm. He tries to assist his wife by taking his children to various after-school activities such as tennis, swimming and Greek school.[55]
[55]Ex P3, paragraph [16], PACB 26-27
56He experiences frustration with his limited ability to help his wife. If he had not suffered from the injuries in the transport accident, he would have been far more involved in assisting with housework, as well as his physical interaction and ability to play with his children.[56]
[56]Ex P3, paragraph [16], PACB 26-27
57Because he is in constant pain, his injuries have affected his day-to-day life with his children and his wife, especially the manner in which he can play with his children. His wife and he had their second child a few months after the transport accident. His injuries made it difficult for him to assist with the care of his newborn son at that time and over the next few years. It was physically difficult, particularly changing nappies and lifting the baby in and out of the car.[57]
[57]Ex P2, paragraph [45], PACB 20
58He continues to try and undertake day-to-day activities like cutting meat, preparing vegetables, stacking and unstacking the dishwasher, hanging clothes and assisting by cleaning around the house where he can. However, he needs to break these activities up into smaller periods of time in order to be able to complete them. This means he takes much longer to complete domestic tasks which frustrates him, as well as his family.[58]
[58]Ex P3, paragraph [20], PACB 28
59As a consequence of the pain that he experiences when doing physical activities, while he continues to do many things, he has to take the pace slower than he used to. For example, it takes him about twice as long to mow the lawn and shave. He also mows the lawn less often. He is not in a position where he can regularly pay someone else to do this for him.[59]
[59]Ex P2, paragraph [42], PACB 19
60He has difficulty writing and engaging in activities that require forward flexion of his cervical spine for prolonged periods. The pain he experiences in his right hand, that his doctors have told him is referred from his neck, is also particularly troublesome for him when writing.[60]
[60]Ex P3, paragraph [20], PACB 28
61He has difficulty with the pain that he experiences when driving, particularly performing head checks. He “pushes through” the pain in order to help with taking the children to their after-school activities. He experiences soreness and discomfort in his right shoulder from contact with the seatbelt in the car.[61]
[61]Ex P3, paragraph [16], PACB 26-27
Loss of enjoyment of life
62His injuries have impacted his ability to engage in hobbies that he used to enjoy. He used to be active and enjoyed physical activities, such as playing tennis and scuba diving.
63Tennis was an enormous part of his life. It is something that he taught himself to play as a child. He was proud of his ability and it was one of his favourite sporting activities. He grew up playing tennis and continued to play during his adulthood. As an adult, he enjoyed playing tennis with his wife, even prior to their marriage. They used to play together on a weekly basis. They played nearly every week from around 1988 until 2011. He also played Monday night competitions during this period.[62]
[62]Ex P3, paragraph [18], PACB 27-28
64At the time of the transport accident, he had recovered from previous right shoulder surgery and had returned to tennis. He now misses this opportunity to enjoy playing tennis and especially to be able to play tennis with his children.[63] He is aware that doing so would increase his pain and he would have to put up with this pain. He prefers to conserve his energy for things he has to do, such as mowing the lawn and housework.[64]
[63]Ex P3, paragraph [18], PACB 27-28
[64]Ex P2, paragraph [44], PACB 20
65He was developing his interest in scuba diving prior to the transport accident. He was certified as an open-water diver in about January 2011. His first official dive after certification was in early 2012. He had intended to pursue this interest, but at that stage, he had a young daughter, so it was difficult to find time to undertake this activity. Since the transport accident, he has been unable to participate in scuba diving because of restrictions caused by his neck and right-shoulder injuries. He has subsequently lost the confidence required to perform the physical tasks associated with scuba diving.[65]
[65]Ex P3, paragraph [17], PACB 27
66He tries to engage with his children by playing games with them, but is restricted in the activities he can undertake. He avoids extending his right arm and shoulder beyond quite-restricted movements, due to the pain that this causes him and the recovery time that he would otherwise require.[66]
[66]Ex P3, paragraph [19], PACB 28
67He is now restricted in his ability to physically engage with his children, for example, to wrestle with them, play ball sports, such as football or tennis, and to engage in activities requiring reaching, pushing, pulling, lifting or potential contact with his right shoulder and arm and, separately, his neck. If he does try to perform any of these activities with his children, he suffers from increased pain afterwards.[67]
[67]Ex P3, paragraph [19], PACB 28
68He tries to kick a soccer ball around with his son about once per week and to play “down ball” with his son, also about once per week. When he does this, he experiences pain in his neck and his right arm. He “pushes through” this pain so that he can continue to have this experience with his son. After this type of activity, he experiences pain in his neck and right shoulder for about an hour. He takes Panadol and Aspirin for this pain.[68]
[68]Ex P4, paragraph [10]
Psychological impact
69After the transport accident, he struggled with the pain and restrictions that he was experiencing. Because of this, he began to struggle with poor sleep, low self-esteem, tiredness and low mood.[69]
[69]Ex P2, paragraphs [50]-[51], PACB 20
70His mental state has deteriorated because of the duration over which he has experienced pain. The ongoing pain and restrictions caused by the transport accident which affect the physical functioning of his neck, right shoulder and right hand, has had an ongoing negative impact on his mental state.[70]
[70]Ex P3, paragraph [4], PACB 24
71He experiences a depressed mood and low self-esteem due to his physical restrictions and the pain from which he suffers.[71]
[71]Ex P3, paragraph [21], PACB 28-29
72He worries a lot about the future. He is very aware that his neck, right shoulder and arm do not function properly. He is fearful that he will have to put up with this pain for the rest of his life and that he will remain restricted for the rest of his life.[72]
[72]Ex P3, paragraph [23], PACB 30
Pecuniary disadvantage
73His injuries have affected the way he runs his business. He came very close to closing the doors of his business after the transport accident. It was a “horrible time” for him. He struggled to keep up. One of his main clients had a major incident during this time because he was unable to keep up. Their business relationship suffered greatly as a result of this.[73]
[73]Ex P2, paragraphs [53]-[54], PACB 21
74After the transport accident, he had to reduce the hours he worked. He now works about thirty to thirty-two hours on average per week. He used to work about fifty hours per week. He has tried, at various stages, to increase his hours beyond thirty to thirty-two hours and has found it was difficult. He tends to spread his hours across six to seven days per week, which is frustrating.[74]
[74]Ex P2, paragraph [55], PACB 21
75As a consequence of his reduced work ability, in March 2017, he took on an employee who he had to train up. This person helped to keep his business functioning and helped him with the workload. Prior to the transport accident, he had never required an employee in his business to assist him.[75]
[75]Ex P2, paragraph [56], PACB 21
76Since the transport accident, he has had to stop doing part of the work that he had being doing. Before the transport accident, he used to build his own IT equipment, including servers, workstations, and computers. Some of these servers could be as large as a “mini-fridge”. He would buy, build and re-sell products. This involved an amount of physicality, including bending and flexing his neck and using his right arm. By avoiding this work, he avoids increased pain and is able to conserve his energy for other tasks.[76]
[76]Ex P2, paragraph [57], PACB 21
77At the time of the transport accident, he was unrestricted in the work he was able to perform. He did not require assistance from other people in performing the physical aspects of the work. Since the transport accident, he has struggled to perform the more physical aspects of his tasks, including lifting and transporting heavy and awkward servers to clients’ server rooms, assembling and dismantling servers and performing the necessary lifting, reaching, pulling, twisting and forward leaning movements involving his spine, right shoulder and arm. In March 2017, when he took on an additional staff member, he did this so that person could complete onsite technical work and also perform the more physical work of assembling, dissembling and transporting heavy and awkward IT equipment, including servers, workstations and computers. He now performs more of the administrative work associated with his business, including remote technical support, in order to avoid the physical components of the work, due to the pain and restriction which his neck injury, right shoulder and right-arm injury pose.[77]
[77]Ex P3, paragraph [22], PACB 29-30
78He still has to perform some physical aspects of his work, but limits this to installing off-the-shelf products, rather than building and installing custom-made servers and IT equipment.[78]
[78]Ex P3, paragraph [22], PACB 30
79Since December 2021, he has not been able to utilise the additional staff member who he had trained up. This is because that staff member chose not to be vaccinated against COVID-19. That makes his work situation increasingly difficult. He has tried to put off any of the heavier physical tasks that otherwise would have been performed. If he is unable to do this, he may need to look at hiring somebody else to assist him to perform the work.[79]
[79]Ex P3, paragraph [22], PACB 30
80During his viva voce evidence, the plaintiff emphasised that he would have had “some pretty good opportunities to grow the business” [80] if he had not been injured. In relation to growing the business, he particularly emphasised the work he had been undertaking in building servers, building communications cabinets, populating all the equipment and doing all the cabling within those systems.[81] He said that “there’s a lot of work out there if you want to chase it, and if you can get it, and if you can do it.”[82] He said that he is now physically unable to undertake this work. Had he been able to, it would have been reflected in an increased amount of money he could have made in the future. That figure is now reduced. That is because, if he were to pursue that aspect of his business, he would now have to pay someone to undertake that work, whereas he used to be able to do it himself.[83]
[80]Transcript (“T”) 54, Lines (“L”) 5-7
[81]T54, L14-18
[82]T54, L8-10
[83]T53, L6-12
Medical reports
81While numerous medical reports were tendered by each party, in the end, closing submissions revolved largely around the opinion of Dr Lim, consultant in rehabilitation and pain medicine. In his closing submission, Senior Counsel for the defendant urged the Court to read each and every letter and report which had been put into evidence and was authored by Dr Lim. In particular, Senior Counsel for the defendant urged the Court to read, in detail, the report of Dr Lim dated 16 August 2021.[84] I have read each of these documents in detail. I have summarised the key matters contained in Dr Lim’s reports below.
[84]T80-81
82In addition to Dr Lim, the plaintiff relied upon reports from Mr John Karamanos, consultant psychologist, dated 1 December 2019;[85] Mr Price, orthopaedic surgeon, dated 14 May 2021;[86] two reports authored by Dr Hooi, specialist neurologist, the first dated 15 March 2022 and the second dated 16 May 2022;[87] three reports from Professor Stephen Davis, neurologist, the first dated 13 March 2020, the second dated 10 March 2022 and the third dated 7 March 2023;[88] two reports from Mr Ash Chehata, orthopaedic surgeon, the first dated 16 March 2022 and the second dated 22 March 2023;[89] two reports from Dr Albert Kaplan, psychiatrist, the first dated 19 May 2022 and the second dated 13 March 2023;[90] and a report from Dr Daisy Samuel, GP, dated 22 April 2023.[91]
[85]Ex P7, PACB 60
[86]Ex P9, PACB 94
[87]Ex P11, PACB 108 and 110
[88]Ex P13, PACB 130, 136 and 176
[89]Ex P14, PACB 143 and 191
[90]Ex P15, PACB 149 and 186
[91]Ex P8, PACB 196
83Each of those medical practitioners, whether treaters or medico-legal experts, confirmed the plaintiff’s account of the injuries which he suffered in the transport accident and the various consequences which he said he had experienced as a result of those injuries. While there was some deviation in the ultimate diagnosis reached by each, none disavowed the opinion that both the cervical spine and right-arm pain symptoms of which the plaintiff complains, are a consequence of the transport accident. Dr Samuel and Professor Davis both supported the diagnosis made by Dr Lim that the plaintiff has, as a consequence of the transport accident, developed central sensitisation.[92]
[92]Ex P13, PACB183; Ex P8, PACB 197
84As to Dr Lim, the plaintiff relied upon five separate pieces of correspondence between Dr Lim and Dr Ng.[93] The plaintiff also relied upon the detailed report provided by Dr Lim dated 16 August 2021, which was the report which Senior Counsel for the defendant also relied upon.[94] In addition to this report, the defendant relied upon fourteen other reports provided by Dr Lim.[95]
[93]Ex P6, see letters dated 26 June 2013, 14 January 2014, 6 March 2014, 24 April 2014 and 5 March 2015, PACB 54-59
[94]Ex P10, PACB 96
[95]Ex D3, see reports dated 8 July 2014, 7 October 2014, 25 November 2014, 30 July 2015, 16 June 2016, 15 December 2016, 15 June 2017, 5 December 2017, 5 June 2018, 4 December 2018, 18 June 2019, 10 December 2019, 9 June 2020 and 26 November 2020,, Defendant’s Further Amended Court Book (“DACB”) 63-66, 69-70, 72-75, 77-80.
85The substance of the matters that were contained in the various pieces of correspondence between Dr Lim and the plaintiff’s GP, and in the individual reports provided by Dr Lim from time to time, were summarised in the detailed report relied upon by both parties, dated 16 August 2021.
86The key points made in that report were as follows:
(a) Dr Lim first assessed the plaintiff on 26 June 2013;[96]
[96]Ex P10, PACB 96
(b) he subsequently reviewed the plaintiff about twice a year, the last time on 26 November 2020;[97]
[97]Ex P10, PACB 96
(c) the plaintiff presented complaining about suffering from chronic, constant right-sided neck/anterior shoulder pain associated with headaches, and dysaesthesia affecting the right radial side of his hand/wrist/forearm, and especially the base of the dorsum of his right index finger. All injuries were a consequence of the transport accident;[98]
[98]Ex P10, PACB 97
(d) Dr Lim diagnosed the plaintiff as suffering from chronic pain due to the development of central sensitisation, as physically reflected by the presence of particular tender muscular trigger points;[99]
[99]Ex P10, PACB 97
(e) central sensitisation results in the chronic-pain sufferer, not only becoming primed to suffer chronic or persistent pain, but also prone to experience spontaneous “flares” of increased pain, independent of any other factors or pathology;[100]
[100]Ex P10, PACB 98
(f) currently, there are no medications and/or surgical procedures which can “cure” central sensitisation or alleviate the debilitating effects of the chronic pain. However, chronic pain encourages the tendency to engage in “avoidance behaviour” (avoiding normal functioning and engagement with society), which serves only to reinforce the neurophysiological and clinical consequences of central sensitisation. As such, normalising a patient’s lifestyle as much as possible can reverse some of these changes, or at least reduce the impact of the condition;[101]
[101]Ex P10, PACB 99
(g) as centrally-sensitised pain thresholds tend to remain lower than previously, once central sensitisation has been established, and despite one’s best efforts, functional capacity which can increase through a desensitisation program usually remains lower than the previous “normal”. In those circumstances, the chronic-pain sufferer may not only continue to experience a constant level of (reduced) background pain, but also spontaneous “flares” of increased pain;[102]
[102]Ex P10, PACB 100
(h) a “cure” for central sensitisation is not realistically available, due to the multifactorial and complex nature of the condition. The ultimate determinant of prognosis is determined by a patient’s acceptance of the condition and ability to adjust to living with their changed circumstances;[103]
[103]Ex P10, PACB 100
(i) thus, unless the chronic-pain sufferer can accept this compromise and can be an active participant, both physically and psychologically, in the program, their prognosis is, and will remain, poor. This can then lead to further entrenchment of a chronic pain syndrome, where the patient’s life is totally focussed on and dominated by pain, leaving the chronic-pain sufferer dependent on the health system, depressed and significantly disabled (even if the condition causing the original pain condition was relatively innocuous);[104]
[104]Ex P10, PACB 100
(j) over the time that Dr Lim was treating him, the plaintiff participated in an individualised pain-management program, designed to address the medical, physical and psychological components contributing to the persistence of his pain. This was then followed by a series of team reviews to ensure that all that had been taught and learnt by the plaintiff was properly incorporated into his activities of daily living;[105]
[105]Ex P10, PACB 100
(k) the plaintiff was actively engaged in the pain-management program while it was running, and recognised that he had “activity-pacing issues”. This was a feature of Dr Lim’s treatment of the plaintiff. It was noted that, while the plaintiff’s engagement in the pain-management program had been good, as he was managing and working in his own business, he still had the tendency to “overdo” activities. As a result, Dr Lim encouraged the plaintiff to take on an additional employee to assist the plaintiff to pace his work-related activities and to ensure that his activities were lower than his centrally-sensitised pain threshold;[106]
[106]Ex P10, PACB 101
(l) in July 2014, the plaintiff again saw Dr Lim and was wanting to pursue investigations in “his quest to find a cure for his chronic pain”. He underwent a guided right acromioclavicular-joint steroid injection in October 2014 to treat the persistence of severity of pain at this site. This treatment was not efficacious, and reinforced the concept of central sensitisation as one of the main generators of the plaintiff’s pain;[107]
[107]Ex P10, PACB 101-102
(m) in December 2017, Dr Lim found that the plaintiff was “well in control of his pain”. The plaintiff reported that his business was doing well, and that in general terms, “life is good”. The plaintiff was keen to explore returning to playing tennis, which had been his passion. On review in June and December 2018 and again in June and December 2019, the plaintiff was noted to be “still coping”. At that stage, he still employed a part-time assistant. On review in June and November 2020, the plaintiff presented to Dr Lim as being “in control” and in good spirits. Dr Lim has not seen him since that time;[108]
[108]Ex P10, PACB 102-103
(n) Dr Lim thought that, as a consequence of his injuries, the plaintiff was likely to continue to be restricted in relation to activities involving:
(i)lifting, bending, twisting and stooping;
(ii)prolonged sitting, standing or walking;
(iii)neck flexion;
(iv)prolonged computer use;
(v)pushing, pulling or lifting;
(vi)prolonged or repetitive use of his right arm/hand;
(vii)manual dexterity;
(viii)tasks requiring fine manipulation; and
(ix)overhead activities
for the foreseeable future.[109]
(o) Dr Lim noted that, as a result of having completed the pain rehabilitation program, the plaintiff had now acquired self-help knowledge and skills to become his own pain therapist/pain manager. As such, in the future, the plaintiff would effectively be in charge of gaining and maintaining improved pain control and restoring an appropriate level of functioning, ensuring that was below his centrally-sensitised, lowered pain threshold. Dr Lim noted that, as at November 2020, the plaintiff estimated he was functioning at about 80 per cent of his previous capacity.[110]
[109] Ex P10, PACB 103
[110]Ex P10, PACB 103
87In addition to the detailed report provided by Dr Lim, the defendant relied upon reports authored by Mr Gary Speck, orthopaedic surgeon;[111] and Dr Gregor Schutz, consultant psychiatrist.[112]
[111]Ex D2, see reports dated 6 June 2022, 27 June 2022 and 26 April 2023, DACB 16-53 and 399-423.
[112]Ex D1, see reports dated 31 May 2022 and 28 March 2023, DACB 6 and 424.
88It should be noted that Mr Speck accepted that the plaintiff suffered from ongoing adverse neck symptoms as a result of the transport accident. In relation to the right-shoulder injury, Mr Speck correctly quoted a history from the plaintiff which recorded the fact of a pre-existing right-shoulder injury. However, he erroneously concluded that the plaintiff’s current right-shoulder symptoms were caused by the pre-existing condition and were “separate to injuries arising from the subject transport accident”.[113] He made no mention of the fact that the plaintiff’s pre-existing right-shoulder injury had substantially resolved prior to the transport accident. He did not engage with the diagnosis of central sensitisation, referring instead to “Chronic pain syndrome (or somatic symptom disorder)”, which he characterised as a “mental health issue”.
[113] Ex D2, DACB 412
89A consideration of the plaintiff’s affidavits and viva voce evidence, together with the various reports which he has made to medical practitioners, both treaters and medico-legal, demonstrates that this history is inaccurate. As such, as regards to the cause of the right-shoulder consequences, I place little weight on Mr Speck’s medico-legal opinion.
90I note that Dr Schutz is a consultant psychiatrist, and consequently, his opinion was of little relevance to the plaintiff’s case, since the plaintiff did not rely upon any psychiatric injury. Instead, as referred to above, the plaintiff’s case is that his current psychological symptoms are relied upon in a Richards v Wylie sense.
Assessment of the Plaintiff as a witness
91Although the plaintiff was cross-examined about many of the aspects of the matters contained in his affidavit material, no serious attempt was made to discredit him, save for showing him a portion of surveillance footage.[114]
[114]Ex D5
92That footage recorded activities undertaken by the plaintiff on 14 August 2022 and 16 August 2022, including (on the first date) driving a car for about fifty minutes, closing the boot, which was open, by reaching his arm up, and then putting on a jacket which he had removed from the car and (on the second date) attending at the premises of one of his clients.[115] In relation to both occasions, it was put to the plaintiff that he did not seem to be suffering from any restrictions in the activities that he was undertaking.[116]
[115]TT43-46
[116]T46, L16-21
93The plaintiff denied that he was not suffering from any restriction while undertaking the activities depicted in the surveillance footage. He said that he would have been wincing at times, although that may not have been able to be seen on the footage.[117] He commented that you could see in the footage, that he was struggling to put his jacket on. He said that he used his left arm, which is his “good one”, to put the jacket onto his right arm and then struggled after that, to get the rest of the jacket on.[118]
[117]TT46-47
[118]T47, L6-21
94Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an honest and cooperative witness, who appeared to be doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment. In addition, he made concessions where necessary, many of which were adverse to his own interests.
95I find that the plaintiff’s account of events has remained consistent throughout the period in which he has seen his treating medical practitioners, consulted with medico-legal assessors and provided evidence to this Court.
96Furthermore, an examination of the surveillance footage reveals that the plaintiff’s description of his activities is accurate. In particular, in relation to the surveillance footage for 14 August 2022, it was evident that the plaintiff was struggling with putting his jacket on in the manner which he described to Senior Counsel for the defendant.
97After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the matters set out in the medical reports and contained in the surveillance footage, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or exaggerate his symptoms in any way.
Stoic Plaintiff
98Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff is extremely stoic in relation to his condition.
99I find that, despite the consequences of his injuries which he has suffered daily since the transport accident, he has actively engaged in an individualised pain-management program in an effort to learn to manage his chronic pain syndrome. I also find that, despite continuing to suffer from chronic pain, he has worked to pursue his career as a self-employed IT consultant/systems engineer. This work has included attempting to grow his business, despite the difficulties from which he has suffered in relation to the injuries to his neck, right shoulder and arm.
100The evidence satisfies me, and I find, that maintaining the number of hours he previously worked in this business has proven to be too difficult for him, and, so, on the advice of Dr Lim, he has reduced his hours of work.
101I find that he has been forced to abandon aspects of his business which he was previously able to engage in, including building IT equipment for his clients, as set out above.
102I find that his restrictions have forced him to take on an employee to perform tasks that, prior to the transport accident, he would personally have been capable of performing. Since that employee has been unable to work due to COVID-19 restrictions, the plaintiff has been unable to resume those tasks either at all, or to the level that he would like. In particular, he now usually spreads his business commitments over six or seven days. Prior to the transport accident, he would have been able to perform these tasks during the working week. This restriction means that, what would otherwise have been leisure time, is now, at least partially, consumed by work commitments, so that his core business can be maintained.
103I find that he has continued to try and assist his wife and family around the house with various domestic chores, and also has continued to try to engage in physical activities with his children in order to maintain a healthy parental relationship with them. He has done this, despite the fact that these activities cause him pain.
Compensable injury
104By the time closing submissions were made, neither the details of the transport accident, nor the fact that it has caused an organic injury to the plaintiff in the form of a condition known as “central sensitisation”, was in dispute.
105In those circumstances, I find that the transport accident did cause the plaintiff to develop “central sensitisation”, which is an organic injury and which has led to the pain in his neck and right arm, and each of the other consequences from which he suffers.
106Having regard to all of the relevant evidence, as set out above, I find that, prior to the transport accident, the plaintiff did not suffer from this, or any similar, condition.
107To the extent that he had been involved in prior transport accidents and suffered various physical injuries prior to the subject transport accident, the evidence satisfies me, and I find that he had recovered from those various injuries, including a right-shoulder injury, for which he had shoulder surgery, prior to the transport accident.
108Similarly, the evidence satisfies me, and I find that he suffered no relevant work restrictions as a result of any of those previous transport accidents or injuries.
109Lastly, the evidence satisfies me, and I find that the plaintiff did not suffer any exacerbation of the injuries which he sustained in the transport accident by reason of the incident which occurred when he slipped and fell over at a supermarket, following the transport accident.
Is the compensable injury “long term” for the purposes of the Act?
110Having considered the relevant reports, including those from Dr Lim,[119] Mr Chehata,[120] Professor Davis[121] and Dr Hooi,[122] I find that the plaintiff is likely to continue to suffer from the consequences of his injuries, which developed as a result of the transport accident, for the foreseeable future. Given this, I find that this injury is “long term” for the purposes of the Act.
[119]Ex P10, PACB 100-103
[120]Ex P14, PACB 114 and 195
[121]Ex P13, PACB 184
[122]Ex P11, PACB 115
Are the consequences to the Plaintiff of the transport accident “serious”?
111Having considered all of the evidence, I find that, by reason of the injuries which the plaintiff suffered in the transport accident alone, he suffers from the following consequences:
(a) constant pain;
(b) headaches;
(c) interrupted sleep;
(d) the need to take medication on a frequent basis;
(e) the need to engage in a home-exercise program;
(f) psychological consequences of his injury, in a Richards v Wylie sense;
(g) an impact on his ability to engage, or engage as fully and as he would like to, in many of his activities of daily living, including assisting his wife with household chores;
(h) a loss of enjoyment of life in the form of a significant impact upon the plaintiff’s ability to engage in many of the hobbies and activities that he enjoyed prior to the transport accident, including the ability to play tennis and engage in scuba diving. The consequences of the plaintiff’s injuries have also had a significant impact on his ability to engage in physical activities with his children;
(i) significant pecuniary disadvantage in the form of having to reduce the number of hours he works; having to modify the nature of the duties that he undertakes; needing to eliminate an important and potentially-lucrative aspect of his business, namely building servers and other components from scratch, rather than using “off the shelf” products; and needing to spread his work hours across six or seven days instead of five, meaning he has less time to enjoy what few leisure activities are open to him.
112In Haden Engineering Pty Ltd v McKinnon,[123] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[124] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[125]
[123](2010) 31 VR 1
[124](Supra) at paragraph [9]
[125](Supra) at paragraph [12]
113Senior Counsel for the defendant relied heavily upon the opinion of Dr Lim that the plaintiff had reported, in November 2020, that he was then operating at about 80 per cent of the capacity he possessed prior to the transport accident. It was submitted that, in assessing whether the plaintiff’s level of injury meets the test for the purpose of the Act, it is “vital” for the Court to have regard to Dr Lim’s assessment, as set out in this report.[126] It was submitted that the Court should be satisfied that this level of injury does not paint a picture of being “seriously injured” for the purposes of the Act.[127]
[126]TT80-81
[127]TT81-82
114In response, Senior Counsel for the plaintiff submitted that the evidence from the plaintiff as to extent of the consequences from which he suffers, was compelling. It was submitted that the evidence:
“… paints a very real picture of a person who has done his best to get on with using what he can to continue running his business, and doing what he can to support his family. when he is, despite the very best efforts of Dr Lim, continuing to significantly struggle …”.[128]
[128] T84, L23-27
115It was submitted, in relation to the plaintiff’s pecuniary capacity:
“He says he tried at various stages to increase his hours beyond 30 to 32, and found it very difficult. He notes, ‘I tend to spread my hours across six or seven days a week, which is frustrating’. No doubt taking away from what would otherwise be leisure time, because he simply doesn’t have the capacity to do what needs to be done to keep the business going.”[129]
[129] T86, L22-28
116In assessing the veracity of the defendant’s submission as to the use which should be made of Dr Lim’s opinion, it is important to take account of the plaintiff’s evidence in relation to this matter. In particular, in his answers to questioning about this issue, the plaintiff made it clear that this improvement in his presentation only lasted while he was able to employ an assistant.[130] In re-examination, the plaintiff clarified that, as at the date of the hearing, he always has pain on the right side of his body.[131] He said that his pain “impacts on everything”.[132] He also said that the loss of his assistant has now made it harder for him to “pace himself” in a way that keeps his activity below his centrally-sensitised pain threshold. In relation to this issue, he gave the following evidence:
[130]T29, L13-22; see also T31, L29, T32, L3-11
[131]TT51-52
[132]T52, L9-10
Q:“….Is the ability to pace yourself … part of your problem at the moment?---
A:Well particularly now, because I don’t have the assistance of my technical assistant anymore. So now everything that happens is on me, one way or another… And I have to make it happen somehow.
Q: So you’ve tried to keep going?---
A: Correct.
Q:… we’ve seen Dr Lim talking about when you go above your functional capacity, that’s when things start to deteriorate?---
A:Correct … But it was with Dr Lim that I discussed I’m going to get a technical assistant. And he was very positive and very helpful and said yep, it’s a good way to go. Try and do that. And it did help.
Q: But it doesn’t exist anymore?---
A: No.”[133]
[133]TT59-60
117I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness.
118As to this matter, I prefer the submission made by the plaintiff. As referred to above, my task is to assess the consequences of the injury to the plaintiff as at the date of the hearing of the application.
119An analysis of the evidence clearly demonstrates that, as at the date of the hearing, by reason of the consequences of his organic injury in the form of “central sensitisation”, many aspects of the plaintiff’s life have been adversely affected, including his experience of daily pain, headaches, interrupted sleep, the need to take medication frequently, his ability to enjoy his activities of daily living, his ability to play and otherwise interact as he would like with his children, his ability to engage in the previous hobbies and recreational activities that he enjoyed, and his ability to enjoy his work, to work efficiently in his chosen employment and to pursue all of the opportunities which would have been available to him to expand and grow his business, had he been able to keep working with the capacity he had prior to the transport accident.
120The fact that the plaintiff has been prepared to keep working since the transport accident is not a matter that tells against the granting of his application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[134]
“… it would be unfortunate, and in my view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury”.
[134][2008] VSCA 260 at paragraph [3]
121As was observed in Hooley v Transport Accident Commission:[135]
“As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, - when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced … All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
[135][2019] VSCA 263 at paragraph [51]
122In Kelso v Tatiara Meat Co Pty Ltd, the Court observed that:
“… chronic pain was a prominent feature of the appellant’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”.[136]
[136](Supra) at paragraph [199]
123I have set out above the consequences which the plaintiff’s injury has had on his day-to-day life. The evidence indicates, and I accept, that those consequences will continue for decades to come. I am satisfied to the requisite standard that, taken together, these matters constitute consequences which are “very considerable and certainly more than ‘significant’ or ‘marked’”.
Conclusion and findings
124As set out above, I am satisfied that, as a consequence of the transport accident which occurred on 1 May 2012, the plaintiff has suffered a “serious injury” as defined in the Act. The application is granted.
125I will hear the parties on the question of costs.
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