Kehagias v Transport Accident Commission
[2016] VCC 547
•27 July 2016
The finan
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-06501
| XENPHON KEHAGIAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 June 2016 | |
DATE OF JUDGMENT: | 27 July 2016 | |
CASE MAY BE CITED AS: | Kehagias v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 547 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – pre-injury lifestyle and capacity seriously restricted by prior physical injury – Disability Support Pension because of prior injury – whether consequences of transport accident injury satisfy threshold
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Ms R J Boyce | Nowicki Carbone |
| For the Defendant | Mr P Jens QC with Mr P Gates | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 On 23 April 2009, the plaintiff was driving his car in St Albans when another vehicle performed a right-hand turn in front of him, causing a collision. He alleges he suffered injuries in the collision to his neck, left shoulder and right shoulder. He applies for leave to bring a claim for damages in respect of such injuries, and to obtain such leave he must satisfy the Court that he has suffered a “serious injury” within the definitions laid out in s93(4)(b) and s93(6) of the Transport Accident Act 1986 (“the Act”).
2 The plaintiff’s application now relies on part (a) of the definition of “serious injury”, that is, that he has suffered a serious long-term impairment or loss of a body function.[1] His principal claim is that he suffered an impairment to his cervical spine. As a fall-back position, he claims to have suffered an impairment to his left shoulder. In final addresses, he did not pursue a claim with respect to the right shoulder.
[1]Section 93(17) of the Act
3 The test which the Court must apply in determining whether he has suffered “serious injury”, is whether the consequences of the injury, when judged in comparison with other cases in the range of possible impairments or losses of function, can be fairly described as at least “very considerable” and more than “significant”, or “marked”.[2]
[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 140 and 141
4 The defendant does not dispute that the plaintiff suffered injury to his cervical spine in the transport accident of 23 April 2009. It submits, however:
“(a)the consequences to him of any injuries identified cannot be aggregated as they impact different body functions[3]; and
(b)assessed separately, neither impairment satisfies the test for a “serious injury”
because any identified injury was not significant enough to result in a change to his lifestyle or his work capacity, such as to be fairly described as “very considerable”.
[3]See Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
5 The plaintiff tendered in evidence three affidavits sworn 4 June 2013, 2 July 2015 and 16 June 2016.[4] He was cross-examined and re-examined. He also relied on the affidavit of his sister, Jean Papafotiou, sworn 31 July 2015. Both parties tendered medical reports and other material, all of which I have read.
[4]Exhibit A
6 It was not seriously in contention that the plaintiff suffered an aggravation of pre-existing degenerative change in the cervical spine, such that those changes were rendered symptomatic and that the effects of the aggravation have not ceased to date, and are likely to be long term.
7 As to the consequences suffered by the plaintiff, his credibility and reliability as to the restrictions endured is very important, as the medical practitioners and, indeed, the Court, are dependent on the reliability of the plaintiff’s account of the consequences arising from the transport accident.
8 The plaintiff’s counsel submits that any issues of credit are modest and that, in any event, the radiology evidence, together with the treatment regime since the transport accident, corroborates the plaintiff’s claim of serious injury. The defendant’s case is that the extent of the consequences of the plaintiff’s injuries as described by him, are amplified in order to advance the prospects of success in this action. Senior Counsel urges me to consider not only the plaintiff’s presentation in the witness box, particularly his ability to sit for a number of hours under cross-examination without showing apparent discomfort, but also his preparedness to make false representations to his general practitioner to obtain the financial advantage of a refund of an international airfare[5]. Further, where the plaintiff claims that one of the consequences of the transport accident was that he experiences “… difficulty engaging in physical intimacy as a result of the ongoing symptoms in [his] neck and both shoulders. As a result, [he has] not engaged in a physical relationship since the accident”,[6] this is to be compared with the attendance upon his general practitioner on 28 January 2014. Therein, Dr Bui recorded:
[5]Transcript (“T”) 31-36
[6]Exhibit A, affidavit sworn 4 June 2013, Plaintiff’s Court Book (“PCB”) 14 at paragraph [44]
“History:
slept with a non regular partner 3 weeks ago.
…
Skin:
site: penile
skin itchy.
Examination:
Skin:
site: penile
red rash
…
Actions:
pathology requested: … .”[7]
[7]Exhibit 5, Defendant’s Court Book (“DCB”) 6
9 The plaintiff’s explanation in cross-examination was that he had not, in fact, achieved intimacy with that partner, but he had tried. He denied that he told the doctor he had slept with a “non regular partner” and said he said it was an “un-regular partner”. When asked “At that stage did you have a regular partner?”, he answered, “Yes I did”, and then retracted the comment and said he had not had a regular partner since the accident.[8]
[8]T 63, Lines (“L”) 1-27
10 Overall, I accept that the plaintiff’s reliability as an historian is somewhat diminished and, accordingly, objective evidence should be sought to corroborate his claim.
Background and prior injury
11 The plaintiff was born in January 1950 and is now aged sixty-six. He migrated to Australia from Greece with his family when he was about four years old. He completed Form 3 in Australia, and then began working with his father in a family-run coffee-shop business. He also states he worked as a labourer for a number of years. In or about 1978, he sustained a low-back injury in the course of employment, which affected his L5 lumbar disc. He ceased working as a result, was granted a Disability Support Pension, and has not worked since. In or about 1987, he spent about six months in jail due to heroin possession, but states that he has now ceased any illicit drug use.
12 Prior to the transport accident the plaintiff, nonetheless, swore that he maintained an active and busy lifestyle, walking on a daily basis to the local shops and seeing friends and family on a regular basis, in particular, his seventeen-year-old daughter, then aged ten. He swore he had a large friendship group, and would attend movies or go to the soccer or football with them. He also enjoyed travelling to Ballarat or Bendigo to visit friends and he occasionally drove to Sydney to visit family. He states he was able to manage to go on long drives by travelling at his own pace and stopping frequently on the way. He states he was “dating” at the time of the accident, and he was able to foster close, personal and intimate relationships with women.[9]
[9]Exhibit A, Affidavit sworn 4 June 2013, PCB 9 at paragraph [10]
13 At home, he was able to perform all domestic and personal tasks.
14 Despite these assertions, the plaintiff was examined by his, then, general practitioner, Dr Knowles, on 19 June 2007.[10] The plaintiff professed little recollection of the attendance, or his complaints at the time. In any event, the note relevantly reads:
[10]Exhibit 1
“Also wants an Invalid Pension
form completed
Continues to have chronic lower back pain down the R leg
…
Uses Panadol …
Pain with prolonged standing
Sitting up to 30 min
worse while getting dressed
unable to bend over … .”[11]
[11]DCB 51
15 The only other medical evidence with respect to the plaintiff’s pre-existing back complaint was a report from his general practitioner, Dr Knowles, dated 19 January 1995.[12] In essence, that report relates that the plaintiff injured his lower back in 1974 and had been referred to orthopaedic surgeon, Mr Kevin King. Mr King, in turn, apparently diagnosed a lumbar disc prolapse and had recommended operative intervention in 1974, in the form of a lumbar discectomy, but the plaintiff had declined the offer. Mr King, again, examined the plaintiff in 1990 and apparently considered he had a genuine disability and continued to support his claim for an invalid pension. Thereafter, Dr Knowles attended the plaintiff from 1992 until the date of the report. He stated that, during this time, the plaintiff had continued to suffer with lumbar spine and right leg pain and had suffered two particularly severe exacerbations, leading to prolonged bed rest and, thereafter, the use of crutches. At that time, treatment had consisted of prolonged bed rest, non-steroid anti-inflammatory drugs, analgesia, a lumbar corset and physiotherapy for several months. When last examined before the report, Dr Knowles noted muscle spasm in the lumbar region and reduction in straight-leg raising. An x‑ray had shown evidence of disc degeneration at the L4-5 and L5-S1 levels. Finally, Dr Knowles reported:
“[The plaintiff] … has been on the invalid pension since 1974 as a result of the chronic lumbar and right leg pain. He is unable to do any form of manual labour, nor any job that requires any prolonged standing, walking or sitting, and any job that requires any kind of back movement. He does not have any training or skills in any sedentary forms of employment. He continues to suffer with chronic back and leg pain and has suffered two recent severe episodes. I believe his symptoms and disability will continue to follow the same pattern in the future. Therefore I conclude [the plaintiff] has a chronic injury and disability that is permanent and sufficiently severe to prevent him from working in the past and future. I do not believe his injury and consequent disability is ever likely to improve to the point where he could resume employment.”[13]
[12]Exhibit 2
[13]Exhibit 2, DCB 64
16 There is no further medical evidence that would suggest that the back condition disclosed in exhibit 1 and exhibit 2 was altered materially prior to the subject transport accident.
17 The state of this evidence appears to me to be at odds with the plaintiff’s sister’s claim that the plaintiff was, prior to the injury, always “an independent strong man”.[14]
[14]Exhibit B, PCB 29 at paragraph [17]
Medical treatment for the transport accident injury
18 The plaintiff attended general practitioner, Dr Bui, the day after the accident on 24 April 2009. At that stage, the history was that, immediately after the accident, the plaintiff had only a slight neck pain. However, over the next twenty-four hours, the neck pain had steadily worsened and had started to spread to the left shoulder. The plaintiff was given Tramal and Celebrex, and advised to rest.
19 Dr Bui then relates that three months later, the plaintiff came back with a complaint of respiratory tract infection, but also mentioned the persistence of the “moderate neck and shoulder pain”, and analgesia was given for the second time.[15]
[15]Exhibit D, PCB 49
20 Thereafter, Dr Bui relates that in November 2009, some seven months after the initial accident, the plaintiff presented for the third time with respect to neck and shoulder pain. A cervical spine x-ray showed a mainly degenerative picture of the cervical spine, with some facet joint hypertrophy.[16] The plaintiff was referred for physiotherapy and chiropractic treatment.
[16]Exhibit D, PCB 49
21 Apparently, over the next few months, “[the plaintiff’s] condition however did not improve and instead worsened slightly with the pain now spread to his right shoulder”. [17] A CT scan of the neck was ordered, which confirmed the previous diagnosis.
[17]Exhibit D, PCB 49
22 Apparently, over the next few months, the condition remained stable but, in July 2010, the plaintiff reported trouble sleeping due to the pain. At this stage, a referral to a rheumatologist was made in October 2010, but it was not until May 2011 that the plaintiff was seen by Dr Mundae. It was Dr Mundae who diagnosed tendinitis and partial tendon tear in both shoulders. As at July 2012, Dr Bui opined:
“The neck pain is consistent with an acute aggravation of a latent cervical spine degenerative disease. The shoulder pain could be related to the accident but it is difficult to be certain.”[18]
[18]Exhibit D, PCB 50
23 In a further report dated 2 May 2015, Dr Bui reported that the condition of the cervical spine had significantly worsened and was not stabilised. He considered there was a high chance that the plaintiff may need neurosurgical intervention. As to the shoulders, he considered that the conditions had remained more or less the same for a longer time, so they could be considered stabilised.[19]
[19]Exhibit D, PCB 56
24 By 10 April 2016, Dr Bui considered that the “accident was responsible for the initial aggravation of the neck and shoulder problems and may have accelerated the disease progression”.[20]
[20]Exhibit D, PCB 71
25 Rheumatologist, Dr Mundae, saw the plaintiff on or about 25 May 2011. He took a history that the plaintiff had been troubled by neck and shoulder pain since the accident. On examination, the reflexes, bilaterally, appeared positive in all modalities. He had limited arm abduction secondary to shoulder pain. In respect to the shoulders, he had marked reduction in abduction and flexion in both shoulders. In active movement and passive movement, there was a lot of guarding, and he was unable to move his shoulder fully. Dr Mundae noted the cervical disc degeneration at C5-6 and C6-7, along with some facet joint hypertrophy. He thought, at that time, the plaintiff had a Chronic Pain Syndrome, and stated, “[The plaintiff] certainly has neck involvement after the accident, but I am concerned about his marked reduction in shoulder movements”.[21]
[21]Exhibit E, PCB 73
26 Subsequently, on 15 June 2011, Dr Mundae reported that an ultrasound had revealed, in the left shoulder:
“… perhaps a partial tear of the supraspinatus tendon and of the right shoulder, some biceps tendinosis and chronic calcific tendinosis of the supraspinatus tendon with a partial thickness tear”.[22]
[22]Exhibit E, PCB 75
27 Dr Mundae prescribed bilateral injections into the shoulders.[23] There is no evidence of any further treatment by Dr Mundae.
[23]Exhibit E, PCB 75
28 Further, the plaintiff had been treated by physiotherapist, Phuong Le, up until 8 October 2012.[24] He noted, at that stage, that the plaintiff continued to suffer from ongoing pain and was unable to achieve great improvement in range and strength of his neck and shoulders, and that the prognosis continued to be unfavourable.[25]
[24]Exhibit F, PCB 85-88
[25]Exhibit F, PCB 86
Medico-legal reports
29 The plaintiff was assessed by orthopaedic surgeon, Mr Garry Grossbard, on 3 July 2012.[26] He took a relevant history. On examination, it was noted:
“[The plaintiff] tended to wince with just about all movements … I noted the rotation [of the neck] in particular was far greater when he was distracted.”[27]
[26]Exhibit H, PCB 96
[27]Exhibit H, PCB 97
30 Examination of the right shoulder confirmed no evidence of muscle wasting, but there was restriction of movement in all directions. There was normal power in the supraspinatus, infraspinatus and subscapularis muscles. Examination of the left shoulder, again, revealed no muscle wasting and normal power of the spinatus muscles. Movements were restricted. Reflexes and power in the upper limbs were normal. X-rays of the cervical spine taken 23 November 2009, and a CT scan on 27 March 2010, confirmed the presence of degenerative change in the cervical spine:
“… but no evidence of major disc protrusion, although there may have been some encroachment onto the nerve roots as a result of degenerative change causing foraminal stenosis.”[28]
[28]Exhibit H, PCB 97
31 It was Mr Grossbard’s opinion that the transport accident had aggravated pre-existing degenerative disease, such that an asymptomatic neck degeneration had now become symptomatic.[29]
[29]Exhibit H, PCB 98
32 With respect to the plaintiff’s shoulders, Mr Grossbard noted:
“There is impairment in relation to this man’s shoulders. It is difficult to know how much of this man’s shoulder symptoms actually arise from the cervical spine. The relatively normal rotation on the right side and the major limitation being in abduction and flexion bilaterally, supports the contention that much of this man’s shoulder pain is, in fact, arising from his neck. Most of his tenderness, which he describes as shoulder tenderness, is in the trapezius area which is most likely secondary to his neck pathology. I would therefore suggest that most of this man’s shoulder discomfort is secondary to his neck injury and therefore does not warrant assessment as a separate injury.”[30]
[30]Exhibit H, PCB 98
33 Mr Grossbard had a follow-up examination on 3 June 2015.[31] He took a history of ingestion of Lyrica, Sinequan, Tramal and Panadol Osteo, the latter, three times a day. On examination, there was restriction of neck movements in all directions. However, he noted:
“These movements were vastly improved when he was distracted, particularly whilst dressing and undressing. Reflexes, power and sensation in the upper limbs were normal. There was some mild suprascapular muscle wasting bilaterally, and there was no deltoid wasting.
All shoulder movements were markedly restricted but I had the feeling that he was resisting all attempts at moving, and the movement could be gradually overcome when his resistance was diminished by distraction. It was therefore not feasible to accurately assess this man’s range of shoulder motion.”[32]
[31]Exhibit H, PCB 99
[32]Exhibit H, PCB 100
34 Ultrasounds of the right and left shoulders confirmed the presence of pathology previously referred to. It was Mr Grossbard’s opinion, at that stage, that the transport accident had resulted in an exacerbation of pre-existing degenerative disc disease in the cervical spine. He noted there was no evidence of radiculopathy, but there was dysmetria and marked restriction of the range of motion, although this was inconsistent during the examination.[33]
[33]Exhibit H, PCB 100
35 With respect to the shoulders, Mr Grossbard noted:
“It is impossible to assess this man’s shoulders. When asked to lift his arms there was total rigidity, although gentle passive coaxing did result in a modest range of motion.
…
I believe the functional component exhibited during this mans’ physical examination makes the assessment of his shoulder impairment impossible.”[34]
[34]Exhibit H, PCB 100
36 The plaintiff’s solicitors also had him examined by neurosurgeon, Mr Paul D’Urso, on 20 October 2015.[35] He took a history that he was attending a physical therapist once a week and undergoing hydrotherapy five times a week. He was able to walk regularly and watch television. He claimed that, prior to his injuries, he was able to visit his daughter without restriction. Further, he was able to attend the movies and sit for protracted periods of time. He also stated he was able to socialise actively and perform chin-ups. He claimed that he could no longer perform these activities.[36] At this point, I should indicate that I accept Senior Counsel for the defendant’s submission that the plaintiff appeared to be able to sit for protracted periods of time in the witness box and it is not clear to me why he could not socialise with his daughter, now aged approximately seventeen, other than it may not be her personal preference. Nonetheless, the plaintiff was currently taking Lyrica, Tramal, Sinequan, Celebrex and Panadol Osteo. On examination, Mr D’Urso stated that the plaintiff’s “biceps, triceps and ankle reflexes were absent. Other reflexes were diminished and symmetrical.”[37] Although not specifically stated, I would assume that the absent ankle reflexes were connected with the lumbar spine rather than with the cervical spine. In any event, Mr D’Urso’s diagnosis was that the plaintiff:
“… is symptomatic from cervical spondylosis where there is evidence of nerve root compression particularly affecting the right C6 and left C7 existing nerve roots. Facet arthropathy is also present in the cervical spine. [The plaintiff] appeared to be symptomatic from bilateral soft tissue injuries affecting the shoulders. A motor vehicle accident in which [the plaintiff] was involved on the 23rd of April 2009 appears to have precipitated symptoms and is likely to have aggravated an underlying degenerative condition of the cervical spine and possibly contributed to the development of injuries affecting the shoulder.”[38]
[35]Exhibit J, PCB 128-132
[36]Exhibit J, PCB 129
[37]Exhibit J, PCT 129
[38]Exhibit J, PCB 130
37 The defendant had the plaintiff examined by orthopaedic surgeon, Mr Robert Dickens, on 25 May 2015. His report was tendered by the plaintiff.[39] Having taken the relevant history, Mr Dickens noted the plaintiff was taking Panadol Osteo, three to four per day; Tramal, one daily; Lyrica, one daily and Sinequan, two daily. He stated he saw his local doctor every month for prescriptions.[40] On examination, movements of the cervical spine were significantly restricted; however, Mr Dickens noted:
“With distraction, it was noted that there was more range of mobility than that demonstrated at formal assessment.”[41]
[39]Exhibit K, DCB 8-17
[40]Exhibit K, DCB 10
[41]Exhibit K, DCB 11
38 Further, examination of the plaintiff’s upper limbs led to the comment:
“… the distribution of the sensoty (scil sensory) changes was not consistent with radiculopathy or peripheral nerve distribution. Assessment of power did not suggest any significant weakness and there was no obvious wasting of the muscles”.[42]
[42]Exhibit K, DCB 11
39 As to the shoulders, Mr Dickens noted:
“When assessing the upper limbs he held his arms firmly to his side and resisted passive movements in quite an obvious manner.”[43]
[43]Exhibit K, DCB 11
40 Mr Dickens then noted the pathology already referred to in the cervical spine and the two shoulders. It was his opinion that, as a consequence of the accident, the plaintiff “sustained a soft tissue injury to the cervical spine but without evidence of radiculopathy”.[44]
[44]Exhibit K, DCB 13
41 With respect to the left shoulder, Mr Dickens stated there has:
“… possibly been a soft tissue injury to the left shoulder with evidence some time after the accident of rotator cuff pathology in that left shoulder. This may have been pre-existing pathology aggravated by the accident or alternatively due to trauma in the accident.”[45]
[45]Exhibit K, DCB 14
42 With respect to the right shoulder, it was Mr Dickens’ opinion that it was difficult to associate those symptoms as being accident related. Leading counsel for the plaintiff abandoned a claim for the right shoulder during final addresses. In any event, Mr Dickens opined:
“During my assessment the patient actively resisted shoulder movements bilaterally, resulting in quite marked reduction In (sic) mobility to formal testing. This mobility was improved when the patient was distracted suggesting an abnormal illness response.”[46]
[46]Exhibit K, DCB 14
43 Finally, Mr Dickens stated:
“There is degenerative pathology in both shoulders with changes consistent with age-related degeneration. It would appear that the left shoulder may have been aggravated as a consequence of the accident.”[47]
[47]Exhibit K, DCB 14
44 Finally, as to consequences, the plaintiff told Mr Dickens:
“… he was able to look after his personal hygiene and was independent but unable to do manual work with his hands.”[48]
[48]Exhibit K, DCB 14
Analysis
45 The plaintiff has not worked since 1974 because of what appears to be a serious back injury. He has been on an Invalid Pension, later a Disability Support Pension up until the time of the transport accident with respect to that injury and has, in recent times, changed over to the Aged Care Pension. The medical evidence from 1995 and 2007 referred to above,[49] suggests that, at those relevant times, the plaintiff was markedly restricted in his day-to-day activities. There is no further evidence of recovery, substantial or otherwise, shortly prior to the subject transport accident.
[49]Exhibits 1 and 2
46 In any event, the plaintiff does not allege that he is unable to carry out normal activities of self-care and hygiene. He is able to socialise, at least to the extent of meeting a “non-regular” partner in a shopping centre, and exert sufficient social skills to be able to persuade her to accompany him to some destination for the purposes of a sexual interlude. This leads to an inference that certainly, as at that time, he would have been able to socially interact with his other friends on a platonic basis and, perhaps, even on a more romantic basis as, apparently, he was able to do prior to the transport accident.
47 In any event, the evidence does not appear to disclose as to how his injuries preclude him from interacting with his now seventeen-year-old daughter. There is no evidence from her that would assist the plaintiff’s case.
48 Although the plaintiff’s sister was not cross-examined, I am told by both counsel that no adverse inference ought to be taken in this regard.[50]
[50]See Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
49 With respect to the shoulders, it would appear that there may have been some referred pain from the neck into the left shoulder which could be taken into account when assessing impairment of the cervical spine. There seems little contemporaneous evidence linking the pathology in the left shoulder as being related to the accident and, certainly, such pathology resulting in any impairment to the shoulder could not be aggregated with the impairment in the cervical spine, as already described.[51] Further, I note the medical opinions to the effect that the impairment to the shoulders is extremely difficult to assess because of the plaintiff’s apparent non-cooperation with the examination.
[51]See Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
50 I would accept, for the purposes of this action, that the plaintiff has aggravated underlying degenerative change in his cervical spine as a result of the transport accident which has resulted in a long-term impairment by way of pain and the need for medication. It would appear that the cervical condition was quiescent to the extent that it was pre-existing, and that has now been rendered permanently symptomatic.
51 Ultimately, the test in this matter is whether the plaintiff has established that the pain and suffering consequences of her injury, when judged by a comparison with other cases in the range of possible impairments or losses of a body function may fairly be described as being “more than significant or marked” and as being “at least very considerable”.
52 This test involves a value judgment in which matters of fact and degree and or impression are operative.[52]
[52]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
53 Further, the emphasis in s93 of the Act is upon seeing where the facts of this particular case sit in the broad spectrum of cases, remembering that includes cases which do not end up in litigation – “…because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed”.[53]
[53]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [42]
54 However, the degree of impairment in terms of the plaintiff not fully cooperating with examinations, and in terms of activities that he has been able to engage in since the accident, lead me to the conclusion that I am unable to find that the consequences from either the cervical spine or the left shoulder can be described as “at least very considerable”, especially when one superimposes those consequences on an already significantly modified and limited lifestyle due to the pre-existing lumbar condition for which the plaintiff has been on an invalid pension and incapacitated for work since approximately 1974.
55 Accordingly, the application must be dismissed.
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