Kirk v Transport Accident Commission
[2014] VCC 1818
•7 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04138
| LANCE KIRK | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2014 | |
DATE OF JUDGMENT: | 7 November 2014 | |
CASE MAY BE CITED AS: | Kirk v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1818 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the cervical spine and pelvis – body function – mental or behavioural disturbance or disorder – range case
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 883; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Petkovski v Galletti [1994] 1 VR 436; Richards v Wylie (2000) 1 VR 79; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Barlow v Hollis (2000) 30 MVR 441; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Dwyer v Calco Timbers Pty Ltd [No 2] [2008] VSCA 260
Judgment:Leave is granted to the plaintiff pursuant to s93 of the Transport Act 1986 to bring proceedings claiming damages in respect of injuries suffered by him in a transport accident which occurred on 22 January 2010
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton, QC with Mr S Loftus of Counsel | Nowicki Carbone |
| For the Defendant | Mr G A Lewis, QC with Mr P J Matthews of Counsel | Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 22 January 2010 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) and (c) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The loss of body functions relied upon in this application in respect of sub-paragraph (a) are the cervical spine, and the pelvis. The mental and behavioural disturbance or disorder in respect of sub-paragraph (c) is major depression with anxious features of traumatisation.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 28 October 2011 and 19 December 2013 and an affidavit of his wife, Sandra Kirk, sworn 30 September 2014. I have not summarised the plaintiff’s affidavit and evidence. However, I will refer to the relevant evidence of the plaintiff and his wife in my reasoning.
7 The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material tendered in evidence, namely the general practitioner’s records of the plaintiff from 2 May 2005 to 6 December 2013, BAS returns of Cunnooks Services from 2009 financial year to 2014 financial year, and a summary of the individual tax returns of the plaintiff from 2007 to 2014 financial years. I have read all the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act;
(c)the injuries to two separate body functions cannot be aggregated.[1]
[1]Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65 at [23]
9 The enquiry 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. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[2] where the majority of the Court of Appeal said:
“To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[3]
[2][1992] 2 VR 129
[3] Humphries & Anor v Poljak (supra) at [140]
10 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 recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[4]
[4]Richards & Anor v Wylie (2000) 1 VR 79
11 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[5]
[5] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
12 In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraph (a) of s93(17).[6]
[6]Per Brooking AJ in Mobilio v Balliotis [1998] 3 VR 883
13 The judgment of the Court of Appeal in Mobilio v Balliotis[7] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[8] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive; namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[9]
[7][1998] 3 VR 833
[8](1995) 21 MVR 314
[9]Mobilio v Balliotis (ibid) at 846
14 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[10]
[10]Supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect.
15 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[11]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable.”
[11][1998] 1 VR 702
16 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[12]
[12](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29].
17 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[13] an analysis has to be made of the extent of impairment of the body function before and after the relevant injury, and the additional impairment must involve serious long-term impairment of body function.
[13][1994] 1 VR 436 and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
The Issues
18 Counsel for the defendant submitted that this case was a range case; namely, that the consequences of the plaintiff’s injuries do not meet the statutory definition.
Investigations
19 On 22 January 2010, a CT scan of the cervical spine confirmed:
“No fracture or dislocation. C5 and C6 anteriorly projecting osteophytes noted. Alignment is unremarkable. Pre-vertebral soft tissue is within normal limits. No paravertebral or intraspinal haematoma seen.”
20 On 15 February 2010, a CT of the cervical spine concluded:
“Some end plate change at C5-6 and C6-7. Possible non displaced fracture involving the right transverse process of C7. If desire nuclear medicine bone scanning could be performed to further evaluate this. No evidence of a focal disc protrusion nor of neural compression.”
21 On 8 June 2013, a x‑ray of the cervical spine showed:
“No destructive lesion. No bony cervical rib. Alignment is satisfactory. Minimal disc degenerative disease present at C5-6 level. No pre-vertebral soft tissue swelling. Mild degenerative change present in the hip joints bilaterally. The sacroiliac joints are unremarkable. No destructive lesion.”
The plaintiff’s medical reports
Dr Lyndon Best
22 Dr Best, general practitioner, confirmed he had been the plaintiff’s general practitioner since July 2006, and that the plaintiff sustained injuries in a transport accident on 22 January 2010. He confirmed the plaintiff suffered the following injuries in the transport accident:
· Displaced sternal fracture;
· Mediastinal haematoma;
· Fracture to second to fifth left sided ribs;
· Left sided pneumothorax, pulmonary contusion, large retroperitoneal haematoma;
· Right sided iliac wing fracture;
· Chronic neck pain likely due to fractured C7 transverse process – chronic headaches and neck pain continuing; and
· Post-Traumatic Stress Disorder (“PTSD”) and depression.
23 In February 2011, Dr Best said the plaintiff was currently partially incapacitated for his pre-injury duties due to the persisting chest and neck pain. He was unable to undertake sustained work above shoulder height, or heavy work such as lifting, pulling and digging. He considered the plaintiff’s injuries had stabilised in respect to the plaintiff’s psychological injuries. He thought there was no further treatment to offer the plaintiff other than what he had already tried. He confirmed the plaintiff’s conditions were consistent with the transport accident.
Ms Bridgette Benson
24 In March 2010, Ms Benson, psychologist, confirmed she treated the plaintiff for psychological care and counselling on three occasions. She said the plaintiff had longstanding experiences of depression which had been exacerbated by the transport accident.
25 In a further report, she confirmed that she treated the plaintiff between February 2010 and November 2010 on eleven occasions. The plaintiff reported not sleeping, impaired concentration, a constant feeling of tension, weight loss and physically feeling “really sore”. The plaintiff reported frustration at his constant pain and not being able to walk without pain. Ms Benson said the plaintiff completed a Beck Depression Inventory and fell into the moderate range. His symptoms suggested he was experiencing anxiety. The diagnosis of post-traumatic stress was considered but not made as the plaintiff did not meet the criteria for PTSD under the relevant diagnostic and statistical manual. The plaintiff reported experiencing depression and anger.
Mr Peter Kudelka
26 Mr Kudelka, orthopaedic surgeon, medically examined the plaintiff in March 2011 and September 2013 at the request of the plaintiff’s solicitors. Mr Kudelka confirmed the plaintiff suffered injury in the transport accident to his neck (including headaches), and in the right sacroiliac region, as well as other parts of his body that do not form part of the plaintiff’s claim in this application. His most recent examination showed only slight restriction of movement of the cervical spine. He considered the plaintiff’s condition had stabilised. Mr Kudelka said the plaintiff required conservative and supportive treatment, and will require occasional visits to his general practitioner for medication. He will have variations in his neck symptoms depending on the amount of physical work he does in his job as an electrician. He thought the plaintiff’s prognosis was favourable in that he could continue working with the aid of an assistant in his own business. He thought three-monthly visits to his general practitioner appropriate to monitor his progress, with prescription of analgesic medication as required. He thought there was unlikely to be any significant change in future years and that the plaintiff’s neck symptoms will restrict him in relation to social, domestic and recreational activities which will be long term.
Mr Murray J Stapleton
27 In April 2011, the plaintiff was medically examined by Mr Stapleton, plastic and hand surgeon, at the request of the plaintiff’s solicitor. Mr Stapleton said the plaintiff had de-pigmented area on the right side of his neck and upper chest of 15 centimetres in long dimension and spread to 3 centimetres across its lower region. He has flattening of the right side of his chest. The plaintiff reported discomfort to a significant degree resulting from the scarring. Mr Stapleton did not recommend surgical revision. He said the plaintiff’s disfigurement had stabilised.
Dr Nathan Serry
28 Dr Serry, psychiatrist, medically examined the plaintiff in October 2011 and November 2013 at the request of the plaintiff’s solicitor. Dr Serry said the plaintiff’s psychiatric reaction to the accident had to be seen in the context of pre-existing issues. The plaintiff reported becoming depressed in about 2002 after the break-up of his first marriage and when his daughters turned against him. The plaintiff briefly saw a psychiatrist and was commenced on antidepressant medication, namely Lexapro, which he was taking up until the time of the transport accident. He reported having remained on the medication, and feeling as though he had largely recovered from his pre-existing issues prior to the transport accident.
29 Since the transport accident, the plaintiff reported constant tiredness, variable concentration and poor memory, broken sleep, a reduction in appetite and loss of weight. His confidence and self-esteem have been eroded. He feels anxious but does not brood on things. He is irritable and short tempered, becoming quite angry until about May 2013 when his dose of Effexor XR was increased from 150 milligrams to 225 milligrams by his general practitioner. This has assisted his anger. He did not report accident-related dreams or flash-backs, but reported dreaming of hospitalisation. He described a non-existent libido.
30 Dr Serry said the plaintiff had a past psychiatric history with symptoms of both anxiety and depression for a number of years prior to the transport accident. Such symptoms were as a result of a difficult separation from his first wife and the estrangement from his two children. He said the psychiatric illness resulting from the transport accident remains a major depression with anxious features, including features of traumatisation.
31 Dr Serry said the plaintiff appeared to have suffered a more significant psychiatric injury with quite prominent ongoing symptoms of depression and, to a lesser extent, anxiety as a result of the transport accident. He said he had some residual features of traumatisation. His prognosis is mixed. He said the plaintiff’s pre-morbid vulnerability, given the earlier depression, was stable before the transport accident. He should be referred to a consultant psychiatrist, although he noted the plaintiff has a disinclination to pursue such treatment. He said the plaintiff’s condition had stabilised. The transport accident had largely contributed to his psychiatric injuries, and those injuries are likely to restrict the plaintiff in relation to his social, domestic and recreational activities. Further, the restrictions are likely to be of a long term nature.
The Defendant’s medical evidence
Mr Robert Dickens
32 In December 2013, Mr Dickens, orthopaedic surgeon, examined the plaintiff at the request of the defendant. He reported that the plaintiff complained of headaches four or five days per week, predominantly left-sided, which required treatment with Panadeine or Panadeine Forte on occasions. This is associated with left-sided neck pain, which he reported comes and goes, but the neck is always stiff. The severity of his pain in the neck on a visual analogue scale is 4-5/10 but it can be 2/10 and can even be 0/10. He reported the pain is improved with medication. It is worse if he sleeps on the right side or has to work overhead or work for prolonged hours. He reported cracking of the neck and poor movement, particularly rotation and looking upwards.
33 Mr Dickens diagnosed a fracture of the transverse process of C7 but no other major disruption in the cervical spine and no evidence of any radiculopathy at a clinical level. In addition, a fracture of the iliac crest on the right side of his pelvis which is giving him persistent symptoms.
34 Mr Dickens said the injuries were consistent with the accident. There were no pre-existing injuries influencing the course of the current injury.
35 Mr Dickens did not believe the plaintiff would suffer harm from engaging in activities of daily living and occupational activities. He said he should avoid those things that cause him discomfort. He considered the treatment provided was conservative and appropriate.
36 Regarding the right hip problem, Mr Dickens expected that, in time, it would improve substantially.
37 With respect to the cervical spine injury, Mr Dickens expected that with time the symptoms in the cervical spine have the potential to improve. He said it was not unreasonable that the plaintiff would be restricted to some degree in his capacity to perform certain activities, particularly working overhead or in between ceilings.
Video surveillance
38 I was shown surveillance film of the plaintiff taken on 8 December 2013. It was of poor quality, and depicted the plaintiff mowing his lawn around the house and operating a whipper-snipper. The film showed the plaintiff emptying the catcher over the fence. The plaintiff said that since the transport accident his son-in‑law, Zoran, mowed that section of the lawn and operated the whipper-snipper, but due to work commitments Zoran was unable to assist on that occasion. Due to the time of the year he was concerned about snakes and fires and the fact that he has a granddaughter who visits regularly plays in the garden. He therefore mowed the lawn. He said after he mowed the lawn he would have lain down, as he does most afternoons, for one to three hours, sometimes more, depending on what activity he has undertaken during the day.[14]
[14]Transcript (“T”) 51
39 I was shown surveillance film taken on 11 September 2014. The plaintiff identified his silver van outside Middy’s. He said on 11 September 2014 he went to Middy’s electrical store in Melton and then to AKA Embroidery. At Middy’s he was picking up materials, and at AKA he was collecting uniforms that he ordered for workers. He said he did not do any physical labour associated with electrical contracting on those days. He said:
“That’s pretty much my life these days. I very rarely pick up a tool at work, especially since that incident at Easter. That’s when we basically decided we needed more employees because I’m just not available to put myself through that and my wife put her foot down as well of course.”[15]
[15]T53, L14–19
40 I concluded that the surveillance showed the plaintiff performing a reasonably active activity, mowing the lawns, which he said was a “one off event”. The surveillance of 11 September 2014 was consistent with the plaintiff’s evidence. I concluded that the surveillance did not assist the defendant’s case.
Credit
41 The plaintiff answered all questions put to him in a direct and frank manner. The plaintiff was a man of few words. I note that Mr Dickens described him as:
“[A] gentleman who is quite straightforward in his presentation, one does not get the impression that there is any embellishment of his symptoms.”[16]
[16]Defendant’s Court Book (“DCB”) 6
42 This is consistent with my assessment of the plaintiff. It was my view the plaintiff presented as stoical. He was not given to exaggeration and, if anything, underplayed the consequences of his injury. I base my impression on the way he presented in the witness box. I accept that the injury suffered by a stoical plaintiff is not to be viewed as any less serious merely because he manages to remain more active than might have been expected given the level of pain.[17]
[17]Dwyer v Calco Timbers Pty Ltd [No 2] [2008] VSCA 260 per Nettle JA at paragraph [3]
43 I formed the view the plaintiff was genuine. He acknowledged to Mr Dickens there were degrees of neck pain he suffered. He conveyed to the court that he was motivated to continue working.
44 The plaintiff’s evidence was in part supported by his wife, whose evidence was unchallenged.
Analysis of the evidence
Neck injury
45 As a result of the transport accident the plaintiff was hospitalised for twelve days at the Royal Melbourne Hospital. He received chest injuries with fractured ribs, lung contusion and pneumothorax, and an injury to his right hip.
46 It was not in issue that the plaintiff suffered an injury to his neck which initially was not diagnosed, but later was picked up as a fracture of C7 when he saw his local doctor because of persistent neck pain. The plaintiff complained of headaches, and all doctors accepted that they were related to the neck injury. All medical witnesses accepted that the neck injury was a result of the transport accident.
47 I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Mr Kudelka and Mr Dickens.
48 The current medical evidence is that the plaintiff suffered a fracture of the transverse process of C7 as a result of the transport accident but no other major disruption in the cervical spine and no evidence of any radiculopathy at a clinical level.[18] Mr Kudelka said there was only slight restriction of movement of the cervical spine.[19] The plaintiff underwent physiotherapy treatment and attended a psychologist, and in large part his treatment has been managed by his general practitioner.
[18]Mr Robert Dickens, DCB 7
[19]Plaintiff’s Court Book (“PCB”) 83
49 Mr Dickens said the plaintiff had a cervical spine range of flexion to 30 degrees with a similar extension range. Lateral flexion was asymmetrically reduced to the right, and rotation was symmetrically reduced, being better on the right when compared to the left, but almost full. He was tender down the left side of the neck, but there was no particular deformity. Mr Dickens said his injuries were consistent with the accident. Mr Dickens expected that the symptoms in the cervical spine had the potential to improve. He said it was not unreasonable that the plaintiff would be restricted in his capacity for certain activities, particularly working overhead or in between ceilings.
50 The plaintiff reported to Mr Kudelka pain in the neck and headaches, and that his symptoms are aggravated by twisting, reaching overhead or working in confined spaces. Mr Kudelka said the plaintiff will have variations in his neck symptoms depending on the amount of physical work he does as an electrician. He accepted that the plaintiff’s neck symptoms will restrict him in relation to social, domestic and recreational activities, which will be long-term. Mr Kudelka was aware the plaintiff was taking Panadeine Forte tablets for the pain in his neck and headaches. He considered his condition had stabilised and there was unlikely to be any significant change in the future years.
51 On the basis of the medical reports I accept that the plaintiff suffered an injury to his neck which was a fracture of C7 and consequent headaches as a result of the transport accident. It is now necessary for me to consider whether the pain and suffering consequences satisfy the statutory test.
52 The plaintiff’s evidence to the court was that the dominant condition is his neck and the headaches. He suffers from headaches four to five times a week at a minimum. If he does strenuous work he will get a headache every day. He described them as from severe to chronic, and when the headaches are chronic he has to lie down and cover his head. He takes the strongest medication he has, and protects his head from the light. He said in April 2014 he had an x‑ray of his cervical spine because of the headaches he was suffering.
53 As to medication, the plaintiff’s evidence to the Court was that he takes Panadeine Forte, and if there is no Panadeine Forte he will take three Panadol. If the headaches are really bad, and he does not have anything stronger, he will take Panadol and two hours later he will take one Ibuprofen, and a further two hours later Panadol again. On occasions he uses Mersyndol, which he finds stronger than Panadol and he can buy at the chemist. He said he takes medication for his headaches five out of seven days per week.[20]
[20]PCB, 23
54 The general practitioner’s notes[21] record that in 2013 the plaintiff was reporting headaches and neck pain, and lack of sleep. In addition, the plaintiff was being prescribed Panadeine Forte in January, May and October 2013. Counsel for the defendant put to the plaintiff he was prescribed Panadeine Forte in January, May and September 2014. The plaintiff’s evidence was that could be correct, and he remembered the September 2014 prescription. I accept the level of medication he takes is at the higher end of the scale and is a serious consequence which I can take into account.
[21]The clinical records of Idameneo (no 123) Pty Ltd (the plaintiff’s general practitioner) from 2 May 2005 to 25 June 2013 were produced to the Court.
55 He told the court that at Easter he was assisting an employee when he suffered a spasm in his neck and collapsed in the carpark. He was taken to the Emergency Department of the Sunshine Hospital and prescribed OxyNorm, which relieved the spasm after a couple of days.
56 I accept the plaintiff’s evidence about the pain he experiences as a result of his neck injury. I accept that the experience of pain for the plaintiff is a consequence I can take into account. I accept that to suffer headaches 4 to 5 days per week is at the higher end of the scale, and is a serious consequence.
57 The plaintiff’s evidence to the court was that he does not attend his general practitioner as often as he should, as he does not like going to doctors and talking about himself. He hates talking about his problems, and feels that he should just get on with it. He says his attendances at his general practitioner vary. Sometimes he attends a couple of times per month; other times, six to eight weeks pass between visits. Mr Kudelka said he required occasional visits to his general practitioner. Mr Dickens said the treatment the plaintiff has received has been essentially conservative, which he believed was appropriate. The plaintiff’s evidence was that initially he attended physiotherapy treatment, but experienced limited results.
58 None of the medical witnesses suggested that his treatment was inappropriate. Mr Kudelka said in the future he will require occasional visits to his general practitioner for medication with variation in his back symptoms, depending on the amount of physical work he does in his job as an electrician. He thought three-monthly visits would be appropriate to monitor his progress, and to prescribe such analgesic medication as may be required from time to time.
59 I accept that the medical treatment the plaintiff undertakes is at the low end of the scale. However I accept the medical evidence of Mr Kudelka and Mr Dickens is that the treatment the plaintiff receives is appropriate. I accept that the treatment the plaintiff receives is a consequence that I can take into account.
60 The plaintiff’s evidence is that his wife suffers from multiple sclerosis. Her condition varies. She has periods when she may be bedridden, and at other times she might be almost normal. When she is really bad she needs to use an electric wheelchair. When she is at her worst he has to assist her in almost all of her needs, which he finds difficult when he is in pain.
61 The evidence is that prior to the transport accident the plaintiff was the carer for his wife, for which he received a Commonwealth government allowance. At the same time, he was able to perform work as an electrician, which he disclosed to the government. The plaintiff worked in his stepdaughter’s business. He was also responsible for cleaning the house and activities such as vacuuming, sweeping and cooking.
62 The plaintiff’s evidence was that as a result of his injuries he was unable to continue being a carer for his wife. One of his step-daughters performs that role. Counsel for the defendant referred the plaintiff to a diary note of a phone call between the plaintiff and a representative of the Transport Accident Commission (TAC), Kirsty Cook, dated 8 July 2010. The diary note recorded that the plaintiff informed the TAC that he had returned to work, but still cares for his wife. He believed he had returned to the hours he was working before the transport accident, but is restricted in some over-the-shoulder movements and chooses the jobs that he can and cannot do.
63 The plaintiff’s evidence to the Court was:
“Course I care for my wife, I’m married to her.”[22]
The plaintiff’s evidence was supported by his wife, which was unchallenged. She said the plaintiff acted as her carer prior to the transport accident. One month after the accident it became evident that her husband could not provide the care he once did, and her daughter Ashley became her carer. I accept the plaintiff’s explanation for the diary note of the telephone call of 8 July 2010. I accept that as a consequence of the transport accident he was no longer able to be the carer for his wife. This is a consequence which I can take into account.
[22]Transcript (T) 28
64 Since the accident he has difficulty in performing more physically demanding jobs such as carrying heavy bags of groceries or baskets of laundry. He struggles to put shopping away and hanging clothes on the line.
65 He is limited in what he can carry and in activities that require him to work with his arms raised overhead. He is assisted by help from family with a lot of day-to-day tasks, otherwise the jobs are not done.
66 I accept this is a consequence that I can take into account.
67 The plaintiff’s evidence was that he lives on a large block of land of about 130 acres which requires substantial upkeep. Before the transport accident he built a pergola out the back. He kept the block tidy. Since the transport accident he has been unable to maintain the property to the extent that he did before the accident. He is limited to light general cleaning and light gardening near the house to make it liveable. His evidence to the court was that he relies upon his son-in‑law Zoran to maintain the property. The video surveillance showed him mowing the lawns and using the whipper-snipper near the house. He said that was the first occasion he had done this particular work since the transport accident, as his son-in‑law Zoran normally does that work, but due to Zoran’s work commitments was unable to do so.
68 The plaintiff’s evidence was that he purchased a ride-on mower since the transport accident. It moves at a slow pace and does not cause jarring. He uses it once a year over two or three weekends, for a few hours, to mow the main part of the house paddock. He sits on it for a couple of hours. I accept that he is limited in the physical work he can do to maintain his property.
69 The plaintiff’s evidence was that he was always an active man, that he could never sit still. He conveyed to the court his frustration about not being able to do the activities that he had previously enjoyed doing. I accept this is a consequence which I can take into account.
70 The plaintiff’s evidence was that his personality has changed. He used to enjoy things more and go out more. He was more happy-go-lucky. He finds going out to dinner is something he does not do that much now. His temper has become worse since the transport accident. He gets angry at anything. His wife is getting sick of him, and this is a complete change in his personality. This is confirmed in evidence by his wife Sandra. She said her husband has become a different person; he is now pessimistic, sad and unable to provide the support he used to. I accept these are consequences that I can take into account.
71 The plaintiff’s evidence to the court is that his wife’s daughter has young children and he would like to play with them more, but has difficulty picking them up and interacting with them as he would like to because of his injuries. I accept that is a consequence I can take into account.
72 The plaintiff’s evidence was that prior to the transport accident he enjoyed a number of hobbies, including woodwork. He produced to the court a number of photographs of the woodwork he had undertaken prior to the transport accident. There was a photograph of a deck at his son-in‑law’s house which was completed about a week before the transport accident. The second was a photograph of an imitation antique radio which he built out of scrap metal. He thought he would have completed that in 2005 or 2006. There was a photograph of a toy-box that he built for his grandson which would have been built in 2009, a cot built for his grandson in 2007, a grandfather clock he built in 2009, and a TV cabinet built in 2006 or 2007. He does not do much woodwork activities now because lifting and carrying heavy pieces of wood, using a hammer and operating machinery, place pressure on his neck. Further when he gets home now he is more likely to lie on the couch and have a nap. He said his woodwork was very important to him, he would spend one to two hours a day, and more at weekends on this activity. He loved it, creating something. He took pride in being able to craft pieces of woodwork which he could keep, give away or sell. I accept the photographs indicate that the plaintiff was an experienced woodworker. He told the court of the pleasure he derived from woodwork. I accept that not being able to perform such an activity is a serious consequence which I can take into account.
73 The evidence is the plaintiff is no longer able to participate in horse-riding and motorbike-riding. He told the court he was not game to ride the motorbike in case he hurt himself. He said there was no joy in walking a horse around a paddock. He said the unstable nature of horse-riding places pressure on his neck. I accept that these are consequences which I can take into account.
74 The plaintiff’s evidence was that prior to the transport accident he worked as an electrician 15 to 20 hours a week, sometimes not at all, as he was the carer for his wife for a number of years. He worked in his stepdaughter’s electrical business, Cunnooks Services Pty Ltd. The work he performed included heavy-duty jobs and tasks that involved working above shoulder height and in confined spaces. After the transport accident he took over the running of the business in the capacity of a manager. He now supervises other members of staff, training and administration. He cannot work as he used to. He cannot work every day, because the work of the business involves shop-fitting, and most of the work is overhead with ceiling lights. A lot of the work affects his neck, and he suffers headaches from the neck pain. He is limited to quoting on particular jobs and attending sites to help staff get organised.
75 The plaintiff reported the restrictions to Mr Dickens, who accepted that it was not unreasonable that the plaintiff would find he was restricted in some degree in his capacity to perform certain activities, particularly working overhead or in between ceilings etc. Mr Kudelka’s evidence was of limited value. He thought the plaintiff had returned to full-time employment. He was aware that the plaintiff had an assistant for the heavier tasks.
76 I accept that the nature of the work the plaintiff can perform as an electrician (the plaintiff’s work capacity) has been affected by the transport accident. This is a consequence that I can take into account.
77 In addition, the plaintiff described consequences of stress, anxiety, frustration and depression. I accept that those are consequences that I can take into consideration in accordance with Richards v Wylie.[23]
[23](2000) 1 VR 79
78 As the plaintiff’s consequences have persisted for approximately four years and the majority of the medical evidence suggests no improvement in the future, in my view his impairment is long term.
79 Taking all the evidence into account, namely his experience of constant pain, the level of medication, the effect upon his work, recreational and domestic consequences, I am satisfied that the consequences to this particular plaintiff can be described as “more than significant or marked” and can fairly be described as “very considerable” when judged by comparison with other cases in the range of possible impairments.
80 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to injuries sustained in the transport accident.
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