Kodric v TAC
[2012] VCC 1289
•14 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00716
| DANNY KODRIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 6 September 2012 | |
DATE OF JUDGMENT: | 14 September 2012 | |
CASE MAY BE CITED AS: | Kodric v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1289 | |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Transport accident – whiplash injury to neck – credibility of plaintiff
LEGISLATION CITED – Transport Accident Act 1986, s93
JUDGMENT – Leave to the plaintiff to bring proceedings at common law.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with Mr R N Morrow | Clark Toop & Taylor |
| For the Defendant | Ms F I O’Brien SC with Mr S Dawson | Wisewould Mahony Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff was injured when a motorcar he was driving was struck from behind by a truck in Brooklyn on 8 February 2006. As a result, he claims to have suffered a whiplash injury to his neck, with possible disc derangement at C5-6. He says that the injury has caused pain and restriction of movement in his neck, headaches, and impeded a range of social, recreational and work activities.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries suffered in a transport accident on 8 February 2006.
3 The plaintiff’s original application included a claim for mental or behavioural disorder, in the nature of a Post-Traumatic Stress Disorder, and an organic brain injury. However, neither was pursued. The application is in respect of the neck or cervical spine and is thus brought under sub-s(a) of the definition of “serious injury” contained in s93(17) of the Act.
4 The plaintiff, various lay witnesses, Ms Cindy Karastanivic, Mr Danny Presljak, Mr Michael Junkeris, and consultant doctors, Mr Stanley Schofield and Mr David Brownbill, were called to give evidence and be cross-examined. In addition, the affidavits of the plaintiff and supporting lay witnesses, medical reports, radiological reports and some clinical notes were tendered in evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment.
5 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
6 The plaintiff was born in 1977, and is currently thirty-four years of age. He is employed on a full-time basis by an automotive service company, Auto Brake Services, in Hoppers Crossing. Prior to the transport accident, he was in good health and in particular, had no prior problems with his neck. According to his affidavit,[1] he played occasional social soccer, undertook all his own housework, cleaning, gardening and maintenance. In particular, he was a keen fisherman, and fished both from the banks of lakes and from boats. He was interested in cars and carried out maintenance work to his own and friends’ vehicles.
[1]PCB 14
7 The plaintiff went to the gym regularly. He was also a talented musician, played keyboards, guitar and drums in a Serbian band. He says he regularly performed at social functions with the band, and it was a particular source of enjoyment.
8 The plaintiff was married, although the relationship broke down subsequently, in approximately 2007. I am not satisfied there was a link between the injuries suffered in the transport accident and the breakdown of his marital relationship.
9 The plaintiff left school halfway through Year 12 and undertook a range of jobs, before starting a traineeship at Beaurepaire Tyres. Subsequently, he obtained employment with Auto Brake Services as a sales representative. He worked long hours and spent a significant proportion of his day in the car.
The Transport Accident and its Consequences
10 On 8 February 2006, the plaintiff was driving a Toyota Hilux utility which was the company vehicle. He slowed to make a right-hand turn, and a truck, which he alleges was travelling at approximately 70 to 80 kilometres per hour, struck the rear of his vehicle. He claims to have hit his head on the steering wheel and then “smashed” his head against the back windscreen. His vehicle struck a pole. He was confused and disorientated and the vehicle was “written off”. Immediately after the collision, he went to his office and then was taken by his wife to the Emergency Department of the Werribee Mercy Hospital. Examination there revealed tenderness over the cervical vertebrae. Cervical x‑rays were reported as normal and he was discharged home after a number of hours, with analgesia.
11 The next day, the plaintiff went to his local general practitioner, Dr Chew,[2] complaining of stiffness and pain in the neck with muscle spasm. A soft-tissue whiplash injury was diagnosed.
[2]PCB 25
12 The plaintiff was off work from 9 to 17 February 2006, and over that period rested, had physiotherapy and took pain-relieving medication.
13 The plaintiff returned to work on reduced hours and duties, increasing to full time by June 2006.
14 The plaintiff remained under Dr Chew’s care until October 2007. Physiotherapy continued until January 2008, and included passive mobilisation, hydrotherapy, pilates and home exercises. He said that he was unable to continue physiotherapy as he could not afford the treatment.
15 In September 2006, the plaintiff commenced treatment with another general practitioner, Dr Eqbal. However, according to Dr Eqbal’s clinical notes, it was not until May 2008 that the plaintiff made any reference to the transport accident and the neck injury sustained. From that time through to the present, he has had few visits to his general practitioner in respect of neck pain or headaches. There were a number of attendances in 2008, but then none until October 2011. At that time, he suffered a serious episode of pain and, as a result, collapsed. He was prescribed Tramadol for pain relief.
16 In evidence, the plaintiff accepted that the last time he saw his general practitioner in relation to his neck injury was December 2011.
17 In May 2006, the plaintiff was referred by Dr Chew for a CT scan of his cervical spine. That concluded mild to moderate foraminal stenosis at C3-4 and C5-6, with little disc bulging and no prolapse. According to an MRI scan undertaken by Mr Schofield in August 2010, similar findings were made with no neural compression. An upright MRI scan undertaken in Sydney in January 2012 reporting the cervical spine as relatively normal, save at C5-6 there was said to be early disc desiccation and new bone formation consistent with mild foraminal stenosis. No significant disc protrusion was noted.
18 In June 2006, the plaintiff was referred by Dr Chew to Dr David Freilich, neurologist. He obtained a history of right-sided neck pain and throbbing headaches, sufficient to disturb the plaintiff’s sleep. When examined again by Dr Freilich in 2009, he observed the plaintiff had improved considerably. Neurological examination was normal. Dr Freilich said the plaintiff had suffered a neck injury in the transport accident, being an aggravation of underlying cervical spondylosis. He thought his symptoms would continue to improve.
19 In June 2007, Dr Chew referred the plaintiff to a psychologist, Mr David Sullivan. The plaintiff complained of depression and despair. Mr Sullivan diagnosed a severe Adjustment Disorder with Mixed Anxiety and Depressed Mood.
20 In 2008, there was a corporate restructure at the plaintiff’s place of employment. As a result, his services were terminated, but within a month he commenced work in the same business for a franchised entity at Hoppers Crossing. His role is that of office manager. He deals with customers and quotes jobs. He undertakes the paperwork and writes invoices. He is involved in the purchase of automotive parts. He does some physical work, including carrying parts to the service area, but those parts rarely weigh more than 5 kilograms.
21 The plaintiff is no longer able to undertake maintenance and repair work on his vehicle, save for sometimes changing the oil and washing the car. On occasions he has pumped up the tyres.
22 The plaintiff is now a single man, and does all his own domestic and household duties, with some assistance from his mother.
23 The plaintiff’s involvement in fishing is significantly restricted. He does still go fishing, and has been fishing on between five and seven occasions in the last twelve months. However, he does not go as often as previously, and now is restricted to fishing from land rather than in a boat.
24 The plaintiff’s involvement in music is now significantly less. He did not play in the band for twelve months after the transport accident. Since then, he has played instruments, although cannot now play the drums and guitar. He still plays the modified keyboards, but his involvement is restricted to rehearsing, once or so each month. He only rarely plays at functions.
25 At the present time, the plaintiff takes over-the-counter medication, every second day or so. As stated, over the Melbourne Cup weekend in November 2011, he claims to have suffered a particularly severe episode of neck pain and headaches. He said he took fifty Paracetamol over five days. He was confined to bed and saw his doctor for prescription of stronger pain-relieving medication, Tramadol.
26 In evidence, the plaintiff said that he did not like to take stronger pain-relieving medication for fear of becoming addicted, or because of side-effects. He currently has no specialist treatment nor any other form of medical intervention. He remains working on a full-time basis, although says that he is restricted in his activities and suffers ongoing and continuous neck pain. This evidence is supported by the affidavit and evidence of Mr Junkeris, his former employer.
27 The plaintiff is restricted in his driving capacity, and now rests after half-an-hour or so in the car.
28 According to his latest affidavit, the plaintiff says, of more recent times, he has had increasing neck and referred pain into his shoulder. He also suffers right-sided headaches. The neck pain occurs each day and he has occasional severe attacks. He uses heat packs and anti-inflammatory cream. Such is the pain in his neck, that he says that his sleep is disturbed and he feels tired and drawn out as a result. He claims that, absent the injury, he would have entertained getting a second job to assist in payment of debts related to his marriage break up.
Medical Evidence
29 The plaintiff was examined at the request of his solicitors by Mr Bittar, neurosurgeon, on a number of occasions in 2011 and 2012. On examination, Mr Bittar found only mild restriction in cervical movements. He diagnosed the plaintiff as having suffered an aggravation of underlying cervical spondylosis. He suggested the plaintiff required further treatment and that he should resume physiotherapy. He suggested anaesthetic blocks to C5 and C6 vertebrae to determine whether that was the source of the plaintiff’s pain.
30 The plaintiff was examined on a number of occasions by Mr David Brownbill, neurosurgeon, between 2009 and 2011. He received a history of neck pain to the right side which was present every day, worse upon physical activity. Further, the plaintiff complained of headaches to the right side present every few days. These became severe, with nausea and throbbing on occasions. He said the plaintiff had suffered soft-tissue damage to the structures of the cervical spine with probable disc derangement at C5-6. He said the headaches and referred right shoulder pain were related to the neck injury. He said any form of heavy activity, including forced neck mobility, or holding the neck in a fixed position, should not be undertaken.
31 I had the opportunity to assess Mr Brownbill in the course of cross-examination. I found him an impressive witness. Apart from his extensive experience, he gave his evidence in a measured manner, making appropriate concessions. He did not see the findings upon the x‑ray or other radiological investigation as matters of significance in determining the nature and extent of the plaintiff’s injury. He said that the history obtained and the findings upon examination were more important. He did not see the new bone formation in the most recent MRI scan as a determining factor. He said there was no present prospect for surgery. In re-examination, he described the plaintiff as stoic.
32 Mr Stanley Schofield, orthopaedic surgeon, examined the plaintiff on a number of occasions from 2009 until 2011. He also attended to give evidence. He described the plaintiff’s neck pain and headaches as signifying a severe whiplash injury. Initially, he thought the plaintiff had prolapsed a cervical disc. In evidence, he thought that such a prolapse may have resorbed, leaving the disc at C5-6 desiccated. He initially considered there was the prospect of cervical fusion surgery. By June 2011, he said there was no present indication for surgery. By December 2011, he said the plaintiff should be considered as a candidate for surgery. In the course of his evidence, he resiled somewhat from that position. He placed great stock upon the findings of the most recent upright MRI scan and said the “new bone formation” was a reflection of the trauma caused in the transport accident.
33 I have reservations about the evidence and opinions of Mr Schofield. He is at one extreme end of the medical opinion. His evidence about the prospect of fusion surgery was confusing.
34 The principal practitioners relied upon by the defendant are Mr Michael Dooley, orthopaedic surgeon, who saw the plaintiff in 2011 and 2012, and Mr Graeme Brazenor, neurosurgeon, who examined the plaintiff and reported in July and August 2012.
35 Mr Brazenor’s opinion is that the plaintiff did not suffer any structural injury in the transport accident. He said there was no injury to any disc and nothing to confirm the same on any of the radiology. He said the normal course of an injury such as suffered by the plaintiff was for healing, rather than ongoing pain over a period of six years. He said there was noted functional behaviour.
36 I also have reservations about the opinion of Mr Brazenor. He is at the other extreme end of the medical opinions. He is the only practitioner to form the view that there was no injury suffered by the plaintiff to explain his ongoing symptoms in the neck with headaches.
37 Mr Dooley provided a number of reports. He said the plaintiff had suffered a soft-tissue injury to his cervical spine in the nature of a whiplash-type injury. He thought that there was some aggravation of the underlying degenerative disease at the C5-6 level. He thought the injury accounted for the plaintiff’s complaints of neck pain, neck stiffness and headaches. He said the plaintiff was giving a fair account of his symptoms, and did not believe there was any exaggeration. He thought the plaintiff would continue to suffer intermittent neck and shoulder girdle pain. The condition could be self-managed. He did not see any role for surgery.
38 I prefer the opinions of Mr Brownbill and Mr Dooley. There is no significant difference between them. I accept the plaintiff, on these opinions, suffered a significant whiplash injury to his neck, with resultant soft-tissue damage. Further, I accept that there was some derangement at the C5-6 disc, although the radiology is not of significance. I accept the opinions that the plaintiff’s current neck symptoms and headaches are related to the trauma of the transport accident.
Conclusions
39 As submitted by Ms O’Brien, on behalf of the defendant, there are aspects of the plaintiff’s history and presentation which mitigate against a finding of “serious injury”. These include:
·Over the years, the plaintiff’s treatment has been modest. He last saw Dr Chew in October 2007 and, aside from physiotherapy to January 2008, had very few attendances with Dr Eqbal until November 2011, when he had a flare-up of symptoms. He has not been treated at all this year. Apart from a short period on prescription pain-relieving medication, he takes only store bought Paracetamol.
·He is able to undertake full-time employment, although less strenuous than prior to the transport accident. He is active in his workplace, although avoiding heavier aspects of lifting and carrying. He drives his car frequently, but requires a break after about half-an-hour’s driving.
·He does not attend any specialists, or allied health practitioners for current treatment.
·He is relatively active, attending to all his own domestic needs, and fishing on a reasonably regular basis. He undertakes some work on his motor vehicle.
·Although his musical activities are restricted, he is able to practise with the band once a month or so, and to some extent still enjoy his involvement with music.
·I should have some reservations about the credibility of the plaintiff, given the histories he provided to various practitioners, including to Dr Chew, the Werribee Hospital and Dr Freilich, whose reports record that he did not lose consciousness in the collision. In his evidence and affidavits, he said he did lose consciousness.
40 Viewed alone, the matters referred to above do mitigate against a finding of “serious injury”. However, an important aspect of this application, in my view, is the credibility of the plaintiff. I had the opportunity to observe him in cross-examination. I found him to be an honest and credible witness. At times he was firm in his response to questions about the nature and extent of his injury, but readily made concessions which I would expect of an honest witness. In my assessment, he was not exaggerating his symptoms, nor attempting to make the most of his injury and restrictions. I reject the submission of the defendant that I ought to have reservations about his credibility.
41 All in all, I accept the evidence of the plaintiff as to the nature and extent of the pain and restriction of movement in his neck, that he suffers regular and serious headaches and as to the restrictions those injuries place upon his daily activities. I further accept the histories he has provided to the various practitioners.
42 To suffer the neck pain and headaches of which the plaintiff complains, would, I accept, have a very significant debilitating effect upon the plaintiff’s life. The pain varies in intensity but requires the taking of significant amounts of store bought pain-relieving medication. I accept the plaintiff’s evidence that the neck injury has had a range of consequences, including a significant reduction in his involvement in his band, in the fishing activities he enjoyed before injury, and his involvement in motor vehicles. I accept his claim that his sleep is affected. It has now been six years since the transport accident, and the situation, if anything, has worsened over recent times.
43 True it is the plaintiff has had very little treatment over the years. However, I accept the opinion of Mr Brownbill that the plaintiff is stoic, and is not a person inclined to make much of his injury, or complain to doctors. While is able to work in full-time employment, he does so with restrictions. I was impressed by the evidence of his former employer, Mr Junkeris, in that regard.
44 All in all, I am satisfied the consequences to the plaintiff of his cervical spine injury do meet the “very considerable” level and are more than significant or marked. In such circumstances, the plaintiff’s application succeeds and I will grant leave to bring common law proceedings, with consequent orders as to costs.
- - -
0
0
0