Kirbas v TAC
[2010] VCC 1311
•30 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04374
| HALDUN KIRBAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13, 14 and 17 May 2010 |
| DATE OF JUDGMENT: | 30 August 2010 |
| CASE MAY BE CITED AS: | Kirbas v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1311 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – serious injury application pursuant to s.93
Transport Accident Act 1986 – impairment of spine – leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy QC with | Zaparas Lawyers |
| Mr L Paine | ||
| For the Defendant | Mr C Blanden SC with | Solicitor for the Transport |
| Mr P Gates | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of a transport accident which occurred on 26 June 2004 (“the accident”).
2 Sub-section (6) of the Act provides that a court must not grant leave under sub-section (4)(d) unless the court is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under sub- section (17)(a):
“(a) serious long-term impairment or loss of a body function.”
4 The body function relied upon in the present application is the spine.
5 The inquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long-term.
6 The serious injury defined by sub-paragraph (a) can:
“… have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”[1]
[1] See Richards v Wylie (2000) 1 VR 79
7 In considering the effect of the plaintiff’s injury-related impairment, I am required to consider whether the consequences of the impairment upon the plaintiff are both serious and long-term. The plaintiff must satisfy me, on the balance of probabilities, in order to meet the threshold test established by s.93(17)(a) of the Act, that the consequences of his injury in terms of impairment when judged by comparison with other cases in the range of possible impairments or losses can “be capable of being fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[2]
[2] Humphries v Poljak [1992] 2 VR 129 at 140
8 The time for assessing whether an injury is serious is the date on which leave is granted or refused.
9 The plaintiff relied upon the following evidence:
• His two affidavits, sworn 14 April 2009 and 11 May 2010. • An affidavit of Ali Kirbas, sworn 11 May 2010. • An affidavit of Roxanne Hindson, sworn 11 May 2010. • The plaintiff’s Court Book, pages 10 through to 108. 10 The plaintiff was cross-examined.
11 The defendant relied upon the following evidence:
• The defendant’s Court Book, pages 11 to 123. • Notes of Dr Ahad, at pages 88 to 95 of the plaintiff’s Court Book, and extra notes up until 23 April 2010. • Documents relating to the plaintiff’s employment at Coles. • Northern Industrial Clinic Certificate of Dr Flaim. • Facsimile cover sheet and résumé of the plaintiff dated 18 May 2007. • Health assessment questionnaire dated 18 June 2007. 12 Dr Ahad was cross-examined.
The Issues
13 Counsel for the defendant submitted that:
• the accident did not cause the plaintiff’s back and neck problems; •
even if it did, those consequences that are attributable to the accident do not satisfy the test of “serious injury”.
The Evidence
14 In his first affidavit, the plaintiff deposes that:
•
He was born in Turkey on 29 January 1983 and migrated to Australia at the age of two. He left school prior to the completion of Year 10. He is engaged to Roxanne Hindson, with whom he has two young children.
•
He suffered multiple injuries as a result of the accident. He was at a friend’s house in Meadow Heights when an argument between his friends and people in a car outside the house occurred. He approached the driver’s door and asked the front-seat passenger and his friend to calm down. He then reached out to shake the driver and the front-seat passenger’s hand by putting his right hand and part of his right arm in through the open driver’s side window. As he was about to let go, the driver grabbed his right arm and drove off. He moved his feet quickly to keep up with the car. The driver let go of his hand a short distance down the road. He fell onto the road and the back right-hand-side passenger wheel ran over his legs. His friend helped him off the road. He recalls having trouble breathing and felt pain in his legs, hands, fingers, head and back.
•
After the accident, his friends drove him to the Northern Hospital Emergency Department. He complained of a headache and pain in his knees, face, left hip, fingers and left hand. His neck was immobilised. He underwent various radiological investigations, which revealed a fracture at the base of his left thumb. His left hand was placed in a splint and bandage. He was discharged from hospital the next day.
•
In the ten months following the accident, he tried to manage his condition by taking medication. He was not recovering as he had hoped, and commenced seeing a chiropractor on 11 April 2005. He stopped attending after eight treatments as he found there was no improvement of his injuries. He attended Dr Baglar, general practitioner, on 10 September 2007, because his neck pain, back pain and headaches were not improving. He had an MRI scan of his neck, upper back and lower back on 2 October 2008. He then saw Mr Barrett, orthopaedic surgeon, on 30 October 2008.
•
He experiences daily lower back pain, which varies in intensity depending upon the activities he undertakes. The pain radiates down both his thighs and lower legs. It can occur spontaneously and last for one or two days. He experiences pain in his middle back, but it is less severe than in his lower back. He experiences constant neck pain, which radiates into his shoulders and upper arms, and fluctuates in intensity. He experiences headaches four times a week, which can last for up to eight hours.
• He takes the following medication: Nurofen, Panadeine Forte and Digesic. •
He has taken days off work for his lower back pain, but has not mentioned the reason to his employer because he wanted to stay at work as long as he could.
•
Since leaving school, before the accident, he has worked in the following jobs: as a handyman with his brother for one year; as a process worker at Melbourne Foam for one-and-a-half-years; and as a cabinetmaker for one- and-a-half-years.
•
At the time of the accident, he owned a take-away kebab shop in Thornbury. After the accident, he went back to work at the shop part-time. However, he found it difficult to continue working because of his injuries, even with his parents’ assistance. He put the shop on the market and sold it in October 2004. He then went on a Centrelink Newstart allowance for four months.
•
Since the accident and selling the shop, he has worked in the following roles: as a telemarketer for New Style Rollers and Shutters for three months, but had to leave because of his headaches; as a knife hand at an abattoir in Brooklyn for four months, but had to leave because the standing exacerbated his back pain; as a labourer at Melbourne Foam, but he had to leave because his back and neck could not cope with the heavy work; as a delivery paperboy for the Herald-Sun for one to two months, but ceased because his car broke down and he could not afford the repairs; as a process worker at ED Oates Cleans for five months, but ceased employment when production was moved to China; and as a process worker at ‘Schmackos’ in Campbellfield for three months.
•
In May 2007, he commenced employment with Coles in Somerton as a full-time low level order picker and continues to work there, earning around $700 per week. His tasks include driving a small forklift to load pallets. The loads are usually not heavy, but if they are he uses lifting techniques advised by Coles. He struggles with the job, as it exacerbates his neck and back pain. When he returns home he has to lie down. He has had to take a significant amount of leave because of his back and neck pain. He has recently told his team manager about his back injury. He is sympathetic. The plaintiff is unsure whether he can remain at Coles. Further, his treating doctors do not approve of his duties at Coles, and have suggested he look for a job which does not involve repeated bending and lifting. He remains at Coles, because he needs the money and he is proud of his work ethic and does not want to go onto Centrelink benefits.
•
In late 2007, whilst still working at Coles, he started his own business distributing health snacks. He spent one day a week driving around to businesses showing them his products. After a couple of months, he found there was no money in his venture and gave it away.
•
His injuries have interrupted his work life and aspirations. Before the accident, he wanted to run a restaurant. He wants to continue working, but fears he will have to leave Coles because of his injuries. He is concerned about his future and his ability to provide for his fiancée and family. He wants them to be proud of him.
•
Prior to the accident, he was an active person who enjoyed socialising with friends, playing with his two young children, playing soccer, playing basketball, cycling, jogging and going to the gymnasium. He has been unable to participate in these activities to the same extent as before the accident.
•
Prior to the accident, he reported to his doctor he was experiencing some back pain. He did not recall this until he saw the doctor’s notes. In any event, the prior back pain was not serious enough for him to take time off work.
15 In the plaintiff’s second affidavit, he deposes that:
•
When attending the Northern Hospital on the night of the accident, he was given a TAC claim form. He did not complete the form as he wanted to forget about his injuries and continue to work in his kebab shop. A chiropractor he saw suggested he could help him and to get the TAC to fund the treatments if he made a claim. Subsequently, on 7 March 2005, he made a claim for the injuries sustained in the accident.
•
His thumb injury healed over in a few months, but he continues to experience pain in his neck, back and knees. His back pain spreads into his hips and the back of his thighs. He is aware of some discomfort at all times.
•
He currently takes around a dozen Panadol or Nurofen each week. This is usually to treat his back pain, but can be for headaches and knee pain.
•
Since the accident, he is unable to run; has to be careful when playing with his children; cannot sit for more than 20 to 60 minutes; cannot assist with cleaning as much as he used to; cannot vacuum; cannot drive for more than one hour and when on long trips has to take regular breaks, and finds it uncomfortable to sleep, with his back pain waking him several times a week.
•
He feels frustrated and guilty that he cannot do more for his fiancée and children.
16 The plaintiff’s father, Ali Kirbas, in an affidavit sworn 11 May 2010, deposed as follows:
• That he is the father of the plaintiff. •
When the plaintiff was injured, he was living at home. Since the accident, the plaintiff sometimes lives with his girlfriend’s parents and sometimes at home.
•
Prior to the injury, the plaintiff was a very quiet boy, but since the accident he seems to have changed. The plaintiff seems more restless and uneasy and experiences back pain.
•
That he opened a kebab shop in 2003 with the intention of the plaintiff running it with the assistance of his two brothers, his mother and himself. The plaintiff worked in the shop after he was injured, but after a month he could not continue. The plaintiff seemed upset about this. He worries about the plaintiff’s future.
17 The plaintiff’s defacto partner, Roxanne Hindson, in an affidavit sworn 11 May 2010, deposed as follows:
• She is the partner of the plaintiff, and has known him for eight years. •
She went with the plaintiff to see a doctor in November 2003 because he was experiencing back pain. The doctor said it was a muscle strain and suggested he use Voltaren rub. His pain went away after a few days.
•
She was with the plaintiff the night he was injured, but did not see him being injured. She accompanied him to the Northern Hospital that night.
•
A few weeks after the plaintiff’s injury he started to complain about his back and mentioned to her that he was going to sell the kebab shop.
• She started to live with the plaintiff in October 2004 at her father’s place. •
The plaintiff was finding it difficult to continue working at Coles because of his back pain and he has used all his sick leave and annual leave. In August 2009, he had several days off because of his back pain and he knew he would be sacked because of it and he gave the job up. He continues to look for a job that does not put stress on his back.
•
She knows the plaintiff has ongoing back pain. He has difficulty sleeping. She believes he is depressed at his situation.
The Plaintiff’s Medical Evidence
18 The plaintiff consulted Dr Damian Nagalingum, a chiropractor, on 11 April 2005, almost ten months after the accident, for a series of eight treatments, concluding on 21 June 2005. The plaintiff presented with low-back pain, cervical pain and headaches which he said he had experienced immediately following the accident. Dr Nagalingum’s clinical notes noted that the plaintiff could not hold and lift the baby and was unable to sit. Despite questioning as to why he had not sought treatment, the plaintiff was unable to give a reasonable answer. It was Dr Nagalingum’s view that the plaintiff was suffering from post-traumatic chronic-moderate spinal biomechanical joint dysfunctions with hypertonicity of adjacent musculature sustained from the accident. His headaches improved significantly, with no complaints on 21 June 2005. The low-back pain had improved marginally.
19 In September 2006, three years after the accident, the plaintiff consulted Dr Baglar, general practitioner, for the injuries he sustained in the accident.
20 In a report dated October 2008, Dr Baglar said that in September 2007, the plaintiff complained of low-back pain, neck pain and headaches. The plaintiff told Dr Baglar that between the date of the accident and seeing Dr Nagalingum, he tried to manage his pain with analgesics. The plaintiff denied any pre-existing back pain, and stated that he was a fit person who played soccer, which he found difficult to play after the injury. Dr Baglar’s examination was mainly normal, with the exception of mild restriction in his cervical and lumbar spine. Dr Baglar reviewed the Emergency Department Notes following the accident. He was aware a CT scan of the head, x-rays of his cervical spine, chest, left hand, pelvis, left hip and knees were performed. All examinations were normal except for the left hand, which was placed in a Zimmer splint. Dr Baglar had access to Dr Ahad’s clinical notes. Dr Ahad was the plaintiff’s general practitioner. Dr Baglar could see no reference to the motor vehicle accident. Dr Baglar said the plaintiff was not a good historian and “to get any information from him one has to drag the words from his mouth”. He did not express himself easily. He had a flat mood and withdrawn presentation.
21 The plaintiff was examined by Mr Charles Flanc, vascular and general surgeon, for medico-legal purposes on 19 March and 16 December 2008, and 20 January 2010.
22 In March of 2008, it was Mr Flanc’s view that the plaintiff had sustained multiple soft-tissue injuries, including abrasions to his knees, and a minor fracture of the left thumb, which had resolved except for pain involving the lower back. Despite this, the plaintiff had continued to work. Mr Flanc considered the circumstances of the accident would be consistent with a severe jarring to all parts of his spine which would have resulted in a soft- tissue injury, but the persistence and severity of these symptoms raised the question as to whether the plaintiff had also sustained some structural damage to the spine, perhaps in the form of developing disc degeneration. He was aware that the plaintiff had not sought medical attention for his injuries other than treatment from a chiropractor in April 2005. He had access to the clinical notes of Dr Ahad who the plaintiff consulted in respect to his asthma. The plaintiff was uncertain whether he attended Dr Ahad for the injuries sustained in the accident. Mr Flanc was also aware that the plaintiff was working. He considered the plaintiff was highly motivated with a strong work ethic who had continued working in various jobs despite his injuries in 2004. He suggested the plaintiff have an MRI scan and be seen by an orthopaedic surgeon.
23 An MRI scan of 2 October 2008 showed:
“Cervical Spine:
At C3-4, a large right posterolateral disc osteophyte complex is present causing severe right C4 neural foraminal stenosis and impingement of the associated nerve root. …
. . .
Severe neural foraminal stenosis at C3-4, C4-5 and C5-6 levels on the right side with associated nerve root impingement.
. . .
Thoracic Spine:
… No significant abnormality.
Lumbar Spine:
…
At L4-5 … Posterior broad-based disc bulging is present indenting the anterior margin of the thecal sac.
Mild degenerative disc disease at L4-5 and L5-S1 with mild central canal stenosis. Bilateral recess narrowing at L4-5 levels may cause bilateral L5 nerve root impingement but this requires clinical correlation.”
24 In October 2008, the plaintiff was seen by Mr Brian Barrett, an orthopaedic surgeon, at the request of Dr Baglar. An examination of the cervical, thoracic and lumbar spine all revealed normal general contours. Straight leg raising was to 80 degrees bilaterally and there was mild lower lumbar tenderness noted. Neurological examination of the upper and lower limbs revealed normal power reflexes and sensation throughout.
25 It was Mr Barrett’s view that during a “rather bizarre incident” involving a motor vehicle, the plaintiff had sustained significant spinal injuries at both the cervical and lumbar portions of his spine with disc bulges. He considered the plaintiff was genuine in his complaints and that they were consistent with the radiological investigations. He said that the injuries have limited capacity to heal or repair, and are not likely to be amenable to operative treatment. Further, he said that the plaintiff will need to avoid situations that aggravate these symptoms, particularly situations of prolonged stooping and heavy lifting.
26 Mr Barrett said that the plaintiff’s current type of work was not ideal considering the spinal injuries and the need for prolonged stooping and the heavy lifting component, but did not consider the plaintiff was incapacitated for his current employment. He considered the plaintiff’s disability is quite significant and was likely to continue into the future but that the injury had stabilised. He considered the plaintiff was at risk of significantly increasing his symptoms and disabilities if he carried out heavy physical activities. He said he would need to continue to avoid aggravating situations that could worsen his current disability.
27 In November 2008, the plaintiff was examined by Associate Professor Hadj, general surgeon, for medico-legal purposes. It was his view that the plaintiff sustained injuries to the neck and lumbar spine and that he had disc ruptures which were most likely due to the accident. He thought the plaintiff’s condition had substantially stabilised and he did not expect any significant changes to occur in the foreseeable future. He noted that the plaintiff was not seeing a healthcare professional for his symptoms and was taking simple anti- inflammatory medication.
28 In December 2008, Mr Flanc re-examined the plaintiff. The plaintiff was still working at the Coles’ warehouse in Somerton and the plaintiff reported that he avoided very heavy lifting, although he occasionally had to lift up to 25- kilogram loads. He told Mr Flanc that he had been trained to lift correctly and tried to avoid bending over. He was managing his job quite well. He reported to Mr Flanc that he had pain in the low-back but had not mentioned this because “he wants to stay at work as long as he can”. He believed he had a total of fifteen days off work over the last six months and was taking Nurofen tablets daily. He told Mr Flanc that he does not like attending doctors because “it is not going to help him”.
29 Whilst Mr Flanc agreed with Mr Barrett that the job was unsuitable because of the prolonged stooping and heavy lifting component, he diagnosed the injury as that of a significant aggravation of pre-existing disc degeneration of the lumbar spine at the L4-5 and the L5-S1 levels, in the sense that it became symptomatic. He noted that the MRI scan showed some possibility of nerve impingement, but said the plaintiff did not have any symptoms of this and there was no objective neurological abnormality.
30 Mr Flanc said that the symptoms in respect to the plaintiff’s cervical spine were less severe than those affecting his low-back. He said he had a significant aggravation of a pre-existing disc degeneration of the cervical spine involving the disc from C3-C6, which had been present prior to the accident but became symptomatic as a result of the accident and he had continued to suffer this level of discomfort. He doubted whether the headaches were related to any injury because there was no history of loss of consciousness. He considered that the plaintiff was vulnerable to severe flare-ups in the future and that alternative occupations should be considered.
31 The plaintiff was examined by Dr Paul Kornan, a psychiatrist, for medico-legal purposes. He diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered the plaintiff’s psychiatric ill-health had been caused by the accident. He said the plaintiff had a whole person impairment of eighteen per cent and within the eighteen per cent, a secondary psychiatric impairment of eight per cent due to his ongoing anxiety over having been in an accident and altering his life from being able to run the take-away kebab business that his parents arranged for him.
32 In January 2009, the plaintiff was medically examined by Mr David Brownbill, a neurosurgeon, at the request of his solicitors. Mr Brownbill said the plaintiff showed a full range of cervical spine movements with discomfort at the limits, and restrictions of thoracolumbar spinal flexion with discomfort at the limits of spinal movements. There was no objective neurological abnormality in the upper or lower limbs, or in the cranial nerves. He said the radiological investigations did not show any abnormalities of the cervical spine on x-rays following the accident and the MRI scans performed three-and-a-half-years after the accident showed multiple level degenerative changes in the cervical and lumbar spines. He considered any concussion head injury was mild. He said the complaints of headaches represented a stress reaction component, however some contribution may be continuing on referral from the demonstrated cervical spine degenerative changes.
33 It was Mr Brownbill’s view that the plaintiff had suffered soft-tissue damage to the cervical and lumbar spines, with later development of degenerative changes. This was consistent with the described incident. He did not consider he had suffered any neurological damage. He also considered the plaintiff had suffered soft-tissue injuries to the neck and lower back with later development of degenerative changes. He considered the plaintiff had suffered a disability (inability to perform desired tasks of a mild degree) and considered his injuries were stabilised. Mr Brownbill said that the plaintiff exhibited a flattened affect with immobile faces. He was slow in his responses, with apparent difficulty recalling precise details of some relationships. He said the plaintiff was co-operative without embellishment.
34 In a report of June 2009, which does not appear to be based on any further consultations, Dr Baglar diagnosed a multiple disc disease/injury. He considered the plaintiff would be limited for the rest of his life in his capacity. He considered that with advancing age, the plaintiff’s condition would deteriorate and he would have arthritis beyond the natural ageing process. He considered his injuries were stabilised. He considered that the employment he was engaged in would affect his condition in the future.
35 In December 2009, Dr Baglar repeated the diagnosis he made in June 2009.
36 In January 2010, Mr Flanc noted that the plaintiff was managing quite well since last seen in December of 2008, but that since his last examination, the pain in his neck, lower back and knees persisted, with the result he had to stop work in August or September of 2009 due to pain which had become severe. The plaintiff told Mr Flanc he had consulted a general practitioner, Dr Qashin, who provided a certificate, but he has not seen that doctor since September 2009. He told Mr Flanc he consulted Dr Baglar the previous day and required a script for analgesia. Mr Flanc considered that the accident either initiated or aggravated the disc degeneration of the lumbar spine and accelerated its progress, and that his symptoms are related to the accident.
37 Mr Flanc said that there had been some increase in his neck and lower back pain. He doubted whether it had been substantial. He considered it had probably stabilised and it was his view that it would continue into the foreseeable future and affect his capacity for employment. He suggested the plaintiff undergo a vocational assessment to determine whether he could be re-trained into a suitable light occupation which could be sustainable.
Cross-Examination of Dr Ahad
38 The plaintiff consulted his general practitioner, Dr Ahad, from August 2001 until 23 April 2010. Dr Ahad was cross-examined. He gave evidence that he had seen the plaintiff on about ten occasions prior to the date of the accident and that in November 2003, he recorded:
“Sudden onset of lower back pain. No trauma. Tender over L4-5/S1 joint. No neurological signs. Soft-tissue injury. Advice given. Counselled. Review in five days as necessary.”
39 Dr Ahad prescribed anti-inflammatory medication, Voltaren Rapid – 50 milligrams, and some anti-inflammatory cream, Difflam – 5 per cent gel.
40 The next notation in Dr Ahad’s notes relevant to back injury was on 25 November 2004, and his records showed:
“Lower back pain for two days. No trauma. Tender over L4-5/S1 joint. Soft-tissue injury. Advice given. Review PRN. Medical certificate for one day. Panamax tablets for pain.”
41 It was Dr Ahad’s view that there was no difference in the two presentations of November 2003 and November 2004. Dr Ahad said “no trauma” meant he would have asked the plaintiff whether there was any immediate injury and the answer was “no”.
42 Dr Ahad said he saw the plaintiff a week later, on 1 December 2004, when there were no complaints of back pain. The next complaint of back pain was on 20 March 2006 and the record was:
“Soft-tissue injury lower back. No bony tenderness. Advice given. Counselled. Review in a week if necessary. Medical certificate for a day.”
43 Again, the plaintiff was prescribed Voltaren – 50 milligram tablets, which is an anti-inflammatory.
44 Dr Ahad said that the plaintiff was unfit to go to work for that particular day; hence he prescribed him a certificate for one day. He said he had seen the plaintiff between November 2004 and March 2006 on eight occasions and there was no complaint of back pain. He said he had seen the plaintiff on twenty-three occasions between 1 August 2007 and 23 April 2010 and on none of those occasions did he complain about back pain or describe any incapacity about bending, lifting, carrying, or performing his job. He had seen the plaintiff on forty-three occasions since the accident on 26 June 2004. At no stage had the plaintiff informed him that he had been involved in a car accident on 26 June 2004.
The Defendant’s Medical Evidence
45 In October 2005, the plaintiff was medically examined by Dr Chris Baker, an occupational specialist. The plaintiff told Dr Baker that he had seen a chiropractor about a week after being discharged from hospital. It was Dr Baker’s view that the plaintiff had suffered a soft-tissue injury of a minor nature to the neck and soft-tissue injuries of a musculoligamentous nature to the lower back. He noted that there was no aggravation of a pre-existing condition.
46 Dr Baker considered the plaintiff’s problems were more of a psychological nature than a physical nature. From a physical perspective, he considered the plaintiff could undertake his pre-injury employment and he was unable to explain the plaintiff’s ongoing complaints of pain and incapacity.
47 Dr Baker expressed the view that the plaintiff should be encouraged to consult his general practitioner, who would be able to provide him with support and assistance in his rehabilitation. He recommended that the plaintiff undertake vocational assistance. It was his view that the only significant injury was to the left thumb and he considered a psychiatric assessment appropriate.
48 In July 2009, the plaintiff was medically examined by Mr Rodney Simm, an orthopaedic surgeon. The plaintiff complained of pain on a daily basis in the lumbar region of the lower back and the base of the neck. Pain increased at times to the point where he had to lie down to gain relief. The plaintiff gave a history of his work as a picker and packer with Coles.
49 Mr Simm was unable to confirm that the plaintiff’s back was injured as a result of the accident. He said he had advanced L4-5 and L5-S1 disc degeneration which pre-dated the accident. He considered that this was the cause for the ongoing low-back pain which probably became an increasing problem. He did not consider the degenerative disc pathology was related to the accident but said it pre-dated the accident.
50 Mr Simm reviewed the MRI scan of the spine dated 2 October 2008. He noted that the radiologist believed there was bilateral lateral recess narrowing at L4-5 which may cause bilateral L5 nerve root impingement, but said there was no clinical correlation of these findings. This was consistent with the views of Mr Flanc and other doctors. Mr Simm was aware that the plaintiff had consulted Dr Ahad in November 2003 with a history of sudden onset of lower back pain. He was aware of the x-rays performed at the Northern Hospital, and noted that considering all other symptomatic areas were x-rayed at the hospital, this would give some indication that the low-back pain was not a significant complaint at that time. He was aware that the plaintiff had consulted Dr Baglar in September 2007, who had been told by the plaintiff that he had not undergone any further formal treatment and was not currently taking any medication for residual symptoms.
51 Mr Simm stated that the pre-existing cervical and lumbar pathology was contributing to the current cervical and lumbar symptoms. He noted that the consensus of opinion was that the injury probably aggravated or influenced the underlying lumbar disc degeneration. He accepted it was a possibility, but said he had based his decision on the available contemporaneous file material. He noted that there was some record that the plaintiff attended a chiropractor shortly after the accident. He said that if the plaintiff was able to produce a report from the chiropractor that confirmed the back was injured and symptomatic immediately after the accident, then he would certainly alter his opinion and concur with the majority of the enclosed medical reports, that a soft-tissue injury has influenced the degenerative lumbar disc disease.
The Plaintiff’s Evidence in Cross-Examination
52 The plaintiff was cross-examined. The plaintiff said he did not go to the doctor’s and complain about his back because he did not think the doctor could help. He said that he was taking Nurofen and Panadol, which he bought from the supermarket. When asked why he did not get medication from a doctor for his back, he said he heard it caused liver failure and he did not want to end up taking any stronger medication. He said he had checked it on the internet and been told this by his fiancée.
53 The plaintiff agreed that he had not complained about a sore back or neck when admitted to hospital. Yet the hospital performed an x-ray on 29 June 2004 which showed no abnormality of the facet joint and the paravertebral soft-tissues were within normal limits. This suggests that the plaintiff complained of pain in the back and neck.
54 The plaintiff did not remember complaining to Dr Ahad, his general practitioner, of back pain before the accident. The plaintiff’s partner said that the plaintiff consulted Dr Ahad in November 2003 for back pain. This was confirmed by Dr Ahad. The plaintiff could not remember complaining to Dr Ahad of back pain on 5 November 2004, his first attendance with Dr Ahad after the accident, and being asked by Dr Ahad whether the back pain had resulted from an accident. I note that the evidence of Dr Ahad was that “no trauma” meant he would have asked the plaintiff whether there was any immediate injury. Given my findings in relation to the plaintiff’s understanding and competence, I do not consider the plaintiff would have had to be asked specifically whether he was involved in an accident for him to have understood the question.
55 He agreed that he saw a solicitor, who suggested he see Dr Baglar.
56 He agreed he had been in employment in a variety of jobs from June 2005 until he saw Dr Baglar in September 2007. First in telemarketing, until he stopped because of headaches. Then at an abattoir at Brooklyn as a knife hand, which he agreed was a heavy job, and where he remained for four months. He agreed that the work exacerbated his back.
57 The plaintiff agreed he was then employed as a foam cutter in a foam manufacturing company, delivering papers, and as a process worker. He worked at ‘Schmackos’ at Campbellfield as a process worker and was required to lift and carry pigs’ ears to a trolley and then place the trolley containing the pigs’ ears into the oven. He said it was hard work.
58 The plaintiff consulted an employment agency, AIMS Employment, but did not tell them about his sore back and neck, or about the accident. He then commenced work at Coles.
59 The plaintiff agreed he completed and signed a Health Assessment Questionnaire where he was asked specific questions about his physical capacity and whether he had back and neck problems, which he denied.
60 The plaintiff agreed that the reason he did not disclose his back problem was because he wanted a job. He agreed he was sent for a medical assessment to Dr Michael Flaim, who examined him and classified him fit for the requirements of the work. He agreed he did not disclose to Dr Flaim the problems he had with his back and neck, or refer to the accident.
61 The plaintiff agreed that he took time off work at Coles towards the end of the week, and at no stage did he tell them it was because of his sore back.
62 The plaintiff agreed that he did not return to work at Coles, because of his sore back. He agreed that he did not seek medical treatment.
63 The plaintiff agreed that the total treatment he received as a result of the back injury incident was the visit to the Northern Hospital on the night of the accident, eight chiropractic treatments from April to June 2005, and two or three visits to Dr Baglar. He agreed that he visited Dr Ahad on a number of occasions after the accident but he did not tell him about the accident or the back. He said in December 2009, Dr Baglar prescribed painkillers.
64 The plaintiff said he was currently looking for work through AIMS and this week he told the agency of the restrictions imposed by his painful back and neck.
65 The plaintiff said that he found it difficult to continue working in the kebab business because of his injuries. Yet he did not seek medical assistance and went on to obtain employment in jobs which involved significantly more bending, lifting, carrying and standing than in the kebab business.
66 I formed the view that the plaintiff was a pleasant man whose recollection of events was not good. He spoke slowly, was vague and had difficulty recalling events. The histories he gave to the doctors he saw were often inconsistent. I did not think he was trying to mislead the Court, but rather, did not appreciate the significance of accurate timelines. I considered he was a poor historian. I note that a number of the doctors who examined the plaintiff commented upon the difficulty they experienced in obtaining a history and information from the plaintiff. He certainly did not overstate his case in the witness box. My view was that this was due to a lack of education and a lack of experience and opportunity. I accept that he was a credible witness. He impressed me as a man who was keen to be employed to support his family. I accept he did not disclose his back injury because he knew he would be unemployable. He did not exaggerate his symptoms.
The Defendant’s Submissions
67 Counsel for the defendant submitted that:
(a) the accident did not cause the plaintiff’s back and neck problems; and (b) if it did, the consequences attributable to the accident do not satisfy the test of “serious injury”. 68 The evidence is that, since the date of the accident, the plaintiff has received minimal medical treatment. This is against a background where the plaintiff attended a general practitioner, Dr Ahad, for back pain on one occasion prior to the accident and had consulted Dr Ahad on forty-three occasions since the accident. Only on two of those occasions did the plaintiff complain of back pain. I note that Dr Ahad was treating the plaintiff for asthma. Dr Ahad, in cross-examination, agreed that he was not told about the accident. The plaintiff agreed, and when asked why not, said:
“I didn’t complain because I didn’t think he’d help.”
69 This is consistent with what the plaintiff said to Mr Flanc in December 2008.
70 Counsel for the defendant submitted that that was nonsensical and did not represent a valid explanation as to why Dr Ahad was not told.
71 I accept the accident caused the plaintiff’s back and neck problems. I rely upon the fact that the plaintiff attended the Northern Hospital on 26 June 2004 where he was treated for injuries unrelated to his neck and back complaint. I note that x-rays were taken of his cervical spine which suggests some complaint must have been made. He has consistently complained to doctors of neck and back pain following the accident. He complained to the chiropractor in April 2005, who accepted the plaintiff had suffered injury in the accident. Dr Baker examined the plaintiff on behalf of the defendant in 2005 and considered he had suffered soft-tissue injuries of a minor nature to the neck and soft-tissue injuries of a musculoligamentous nature to the low-back. The Transport Accident Commission made payments to the plaintiff’s chiropractor and impairment benefits were paid to the plaintiff for his back and neck injury. Whilst I accept that the payment is not conclusive, it is to be regarded as very significant.[3]
[3] Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171 (3 August 2006)
72 The plaintiff’s medical witnesses accepted that the back and neck injuries were attributable to the accident. The only medical witness to express reservations was Mr Simm. Further, the evidence of the plaintiff, his de facto partner and his father confirmed that the plaintiff complained of pain following the accident. In those circumstances, I accept that there is a causal connection between the plaintiff’s back and neck problems and the motor vehicle accident of June 2004.
Analysis of the Evidence
73 The plaintiff has worked performing heavy work which involved bending, lifting and standing for periods despite being cautioned by doctors about the stress this placed upon his back. Further, he said that towards the end of the week he had to take time off work, because of the pain to his back and neck. In fact he had used up his sick and annual leave entitlements. Clearly the plaintiff was keen to work, and in fact said he had completed questionnaires, not disclosing his back injury. However, he ceased work with Coles in August or September 2009 due to low-back pain which had become more severe. He is currently looking for work which does not put stress on his back.
74 Further, the plaintiff agreed that he had taken Nurofen, Panadeine Forte and Digesic. The evidence varied as to the frequency with which he took the medication. In his affidavit he said that following the accident he managed his condition by taking medication and reported this to Dr Baglar. Associate Professor Hadj said the plaintiff was taking anti-inflammatory medication. In October 2008, the plaintiff told Mr Barrett and Mr Flanc that he was taking Nurofen daily. Further, in July 2009, he told Mr Simm that after the accident he self-medicated with Nurofen, which he took intermittently for some time, but he was currently taking no medication. In January 2010, the plaintiff told Dr Flanc he had seen Dr Baglar the previous day and had been prescribed analgesics.
75 The plaintiff’s medical evidence consisted of a number of medico-legal reports provided three years or more after the accident, in most cases by doctors who only saw the plaintiff on one occasion, other than Mr Flanc, who saw the plaintiff in April and December 2008 and January 2010. The consensus of opinion was that the accident either caused or aggravated the underlying lumbar disc degeneration, that the plaintiff’s complaints were consistent with radiological investigations which showed significant spinal injuries at both the cervical and lumbar portions of his spine with disc bulges.
76 The doctors accepted that the plaintiff’s injuries had stabilised and that it was unlikely that they would heal or repair and are not likely to be amenable to operative treatment. There was a concern by Mr Barrett and Mr Flanc that the employment that the plaintiff was engaged in was not suitable. Mr Barrett did not consider the plaintiff was incapacitated for his current employment, but he considered there was a risk of significantly increasing his symptoms and disabilities if he carried out heavy physical activities. By the time the plaintiff was finally examined by Mr Flanc in January 2010, he had ceased his employment with Coles, and Mr Flanc considered the plaintiff should undergo a vocational assessment to determine whether he could be retrained into a suitable light occupation. Dr Baglar also recommended the plaintiff undertake a vocational assessment.
77 It is relevant to note that the plaintiff left school prior to completing Year 10. Further, most of his employment has been of a manual nature involving heavy lifting, stooping and standing for significant periods. Only recently has he disclosed to employment agencies his back injury and the need for part-time light occupations. For this plaintiff, given his age and interference with his work capacity, such restrictions are significant.
78 The plaintiff was examined by Dr Paul Kornan, a psychiatrist, who considered the plaintiff had a secondary psychiatric impairment of eight per cent due to his ongoing anxiety over having been in an accident and the alterations to his life. I am able to take this into account in accordance with the principles of Richards v Wylie.[4] I note that the plaintiff did not receive any treatment or medication for psychological or psychiatric aspects of the injury.
[4] (2000) 1 VR 79
79 In paragraphs 20, 21, 22, 23 and 24 of his first affidavit, the plaintiff lists the difficulties he has and continues to suffer since the accident. His problems are confirmed by his father and partner in their affidavits, whose evidence was not challenged.
80 In the plaintiff’s recent affidavit, he refers to further consequences that he has suffered.
81 The defendant’s evidence was of limited value. First, the plaintiff was seen by Dr Baker in 2005, confirming the fact that the plaintiff was complaining of back injury at that time. However, Dr Baker did not review the plaintiff and therefore did not have the opportunity to comment on the radiological reports or provide an up-to-date assessment of the plaintiff. Secondly, Mr Simm was unable to confirm the plaintiff’s back was injured as a result of the accident. Yet he said if the plaintiff could produce a report from the chiropractor that confirms the back was injured and symptomatic immediately after the accident, he would alter his opinion. There is no suggestion that the chiropractor’s report was sent to Mr Simm. Further, Mr Simm was obviously unaware of the plaintiff’s complaints of back pain to Dr Ahad in 2004 and 2006.
82 Based on the plaintiff’s medical evidence, I accept that the accident caused or aggravated the underlying lumbar disc degeneration. Whilst there was evidence that the plaintiff consulted his general practitioner in respect of back pain on one occasion prior to the accident, the evidence was that he was otherwise symptom-free.
83 I accept that the consequences suffered by the plaintiff were materially contributed to by the compensable injury.
84 Following Ashley JA’s decision in Grech v Orica Australia Pty Ltd & Anor,[5] the proper analysis to determine whether a plaintiff ought to be granted leave is:
[5] (2006) 14 VR 602
(a)
to establish the plaintiff suffered a compensable injury, noting injury includes an aggravation, acceleration, exacerbation or deterioration of previous injury or disease;
(b) to sufficiently establish what the injury was; (c)
to determine the consequences the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and
(d)
to determine whether those consequences attain the “very considerable” level both as to pain and suffering and economic loss as the legislation requires.
85 I find that the plaintiff suffered an injury to his spine in the accident. Most of the doctors accepted the injury had stabilised; none said it would improve. Taking into account the serious effect the plaintiff’s injury has on his earning capacity, and his pain and suffering, I am obliged to apply the definition of “serious injury” relied upon, but also to have regard to the guidance in Humphries v Poljak[6] that I should make a judgment whether the plaintiff has suffered a serious injury by comparison with other cases in the range of possible impairments or losses. I accept that the impairment is long term.
[6] (supra) at 140
86 Taking all of the evidence into account, and considering it as a whole, I am persuaded, on the balance of probabilities, that the consequences of the injury to the plaintiff satisfy the test. I accept that the plaintiff suffered an injury to the spine in the transport accident. I accept that the injury has consequences to him that, when judged by comparison with other cases in the range of possible impairments, can fairly be described at least as being more than “significant” or “marked” and as being at least “very considerable”.
87 Accordingly, I grant the application.
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