Koll v TAC
[2010] VCC 271
•15 April 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
SERIOUS INJURY
Case No. 09-293
| GARY MICHAEL KOLL | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | JENKINS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 March 2010 |
| DATE OF JUDGMENT: | 15 April 2010 |
| CASE MAY BE CITED AS: | Koll v TAC |
| MEDIUM NEUTRAL | [2010] VCC 0271 |
| CITATION: |
REASONS FOR JUDGMENT
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Catchwords: | Transport Accident; Application under section 93(4)(d) Transport Accident Act 1986; claimed “serious injury” under paragraph (a) [cervical spine;] issue of credit and extent of consequences. |
| - |
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C.J. Blanden SC with Mr K.L. Mueller | |
| For the Defendant | Mr P. Elliott QC With Mr I. | Transport Accident |
| Gourlay | Commission | |
| HER HONOUR: |
Application
1 This is an application pursuant to section 93(4)(d) of the Transport Accident Act 1986 (“the Act”) for leave to bring a proceeding for the recovery of damages in respect of injury, pursuant to section 93(4)(b) of the Act, made by Originating Motion filed 28 January 2009.
2 The Plaintiff claims that as a result of a transport accident on 25 February 2006 he suffered a serious injury or injuries under paragraph (a) of the definition of serious injury under section 93(17) of the Act.[1]
[1] PCB 5 Particulars of Injury claimed
3 Pursuant to s.93 (17) of the Act “serious injury” means, so far as it is relevant to this application:
(a) serious long term impairment or loss of a body function; 4 The particulars of injury claimed under paragraph (a) are: injury to the neck with left brachial neuralgia and sensory disturbance due to compression of the left sixth and seventh cervical nerves.
5 The onus of proof is on the Plaintiff to prove that the consequences arising out of the impairment to the cervical spine, can be described at least as “very considerable” and certainly more than “significant” or “marked having regard to the range where this injury fits in of a range of similar impairments.
Applicable Law
6 Section 93(1) of the Act provides that a person shall not recover damages in any proceedings in respect of injury or death as a result of a transport accident except as provided by the section. Specifically, where the degree of impairment is not deemed or otherwise accepted by the Commission to be a serious injury, then a person may apply to this Court; and the Court must not give leave to bring the proceedings unless satisfied that the injury suffered was a serious injury.[2]
[2] subsection 93(6)
7 This application is to be determined on the evidence before the Court, to which I will refer, by applying the above statutory definition to that evidence.
Significant Issue for Determination
8 The Defendant concedes that the Plaintiff suffered a compensable injury but denies that he has suffered a serious injury as defined. The Plaintiff’s credit was also challenged.
9 I propose to deal with this application as follows:
a) I will briefly summarize relevant evidence from the Plaintiff’s three affidavits and his oral evidence together with the evidence of his wife which attest to the occurrence, nature and extent of his injuries and the effect upon him; b) I will refer to relevant medical evidence which characterise such injuries and the clinical findings; and c) I will then give my factual findings and reasons as to the nature of the injuries suffered and the consequences for the Plaintiff, including his capacity for suitable employment. Evidence
10 In support of the Application, the Plaintiff relied upon:
(a) Documents referred to the exhibited Plaintiff’s Court Book comprising medical reports, affidavits and other documents; and (b) Oral evidence given to the Court by the Plaintiff and his wife. 11 Opposing the Application, the Defendant relied upon:
a)
Documents referred to in the exhibited Defendant’s Court Book comprising medical reports, affidavits and other documents;
b)
Extract of clinical notes of the Plaintiff’s Physiotherapist and General Practitioner; and
c)
Income Tax Returns of the Plaintiff and his wife; and Trading Statements of the business Time Out Home Care.
Evidence of the Plaintiff[3]
[3] Affidavits of 7 July 2009; and 18 February 2010; and statement of 7 November 2007
12 The Plaintiff was born on 23 January 1954 making him now 56 years of age and 52 years old at the time of the transport accident. He is married with two adult children from a previous relationship.
13 Gloria Koll, his wife, works full time as a customer service officer at Centrelink, Ballarat. They have been married for 10 years and together for 16 years. Mrs Koll provides the bulk of the family income. She has suffered from fibromyalgia since approximately 1990, which has worsened over the past two years.
Education and Employment
14 The Plaintiff attended school to year 11 at Donald High School. He would spend most of his recreational time outdoors. He frequently went camping to various places but particularly the Echuca area as he enjoyed fishing on his boat and wished to maintain a good relationship with his son.
15 From 1973 to 1977 he worked as a labourer for Countryside Meats. From 1977 to 1979 he worked in various warehouses; and from 1979 to 1983 he worked in a slaughterhouse in Bendigo as a labourer.
16 In about 1984 he commenced work as a track ganger for Vic Rail laying the sleepers and maintaining the track. After suffering a lower back injury in the mid 1980’s he was off work for about 12 months and then returned to Vic Rail to perform clerical work as a payroll clerk. The Plaintiff suffered stress in this role and eventually made a stress related claim against the railways. Subsequently he made a second claim for stress and then ceased work on worker's compensation for a period of time.
17 The Plaintiff ceased employment with Vic Rail in approximately the late 1990's. He then worked as a part-time cleaner for Wizard Cleaning of Ballarat.
18 In about 1999/2000 he commenced working as a part time cleaner for the University of Ballarat working 3 hours 17 minutes per day, 5 days per week. He used to work between 6 am and 9.17am daily.
19 While performing the cleaning contract for Ballarat University, the Plaintiff also worked part-time for the family businesses, principally as a gardener but also doing odd jobs and some cleaning. The gardening work was seasonal. It consisted of the usual gardening such as lawn mowing and heavier tasks such as removing small trees, shrubs and limbs using a medium size chainsaw, being a Stihl 20" Farm Boss.
20 Two businesses were registered in the name of Mrs Koll: Time Out Home Care, which was principally concerned with gardening and home maintenance; and GMK Cleaning which was established with the intention of expanding the cleaning business into school contracts. Mrs Koll had minimal involvement in these businesses at the outset and none after she became employed full time with Centrelink. Nevertheless, all income derived from both of these businesses was ultimately declared in her income tax return. Furthermore, deductions were claimed by her in respect of superannuation notwithstanding that the Plaintiff and his wife both gave evidence that payments were in fact made into the Plaintiff's superannuation fund.
21 GMK Cleaning has done very little because the Plaintiff was in fact unsuccessful in obtaining any school cleaning contracts. Currently, the Plaintiff performs light office cleaning for one client once a month which involves some vacuuming, emptying bins, wiping down tables and window cleaning.
22 The Plaintiff further stated that apart from a short period working as a Clerk for the Railways, for which he says that he was not able to mentally cope, he has always worked performing manual labour.
23 When his employment was formally terminated on 7 March 2008 he earned $696 net per fortnight.
24 In her affidavit and oral evidence Mrs Koll said that the Plaintiff enjoyed his work at the Ballarat University and appeared to cope well with it. After finishing his cleaning job each day, he was also working part-time principally as a gardener but also doing odd jobs and some cleaning in his own business, Time Out Home Care, which was registered in her name. He worked approximately 5 to 7 hours a day, although it was seasonal work. He wanted to build up this business. He unsuccessfully quoted for a number of commercial cleaning jobs. He had the occasional lower back pain but she could not recall him taking any significant time from work as a result.
25 Mrs Koll stated that most of the time he appeared to be fully engaged with work. He had usually left for work at his cleaning job before Mrs Koll left for work and he was often not home from work by the time she returned from work in the afternoon. He also spent time working on cleaning, maintaining and repairing his equipment on his return home. He did his own invoices, quotes and other paper work. Mrs Koll described the Plaintiff as industrious at home doing the odd job and repairs such as painting the house.
26 Under cross examination the Plainitff confirmed that the money he earned in the gardening business was in fact declared as income in his wife’s income tax return and paid into his Superannuation Fund, even though he did not claim it as a deduction. The business Time Out Home Care did not show any moneys being paid to the Plaintiff. Both the Plaintiff and Mrs Koll said to the effect that this arrangement had been made at the recommendation of their accountant. Mrs Koll had no knowledge of the business records maintained by the Plaintiff. She believed that he mainly did gardening now although could not describe in detail what he did, other than mowing and weeding and she did not have any knowledge about any cleaning work.
27 The Plaintiff further confirmed that he kept no records of the hours which he worked in the business; and no records of clients or amounts received for particular jobs. He was paid by cheque and sometimes in cash which he simply kept. While his wife did a little bit in the business initially she ceased her involvement once she became fully employed.
28 The Plaintiff could not provide any information about regular customers, frequency or location of jobs or precise nature of work performed, other than an overall general description. He stated that he did use a self-propelled mower, a whipper snipper and an electric small chainsaw, [alligator saw] on gardening jobs. He has acquired two new clients since his transport accident. He drives a Utility with a trailer to remove garden refuse.
29 The following financial data appears from the tendered material:
| Financial | Gross | Total | Net | Net | Plaintiff’s |
| Year | Trading Profit | Expenses | Profit/Loss | Profit/Loss | Gross |
Time Out including before S’Ann Income from Home Care S’Ann Ballarat Uni
| 2002 | 10,558 | 10,645 | (87) | 3913 | ||
| 2003 | 9,068 | 10,950 | (1,937) |
| ||
| 2004 | 11,641 | 12,611 | (970) |
| ||
| 2005 | 10,813 | 11,053 | (240) |
| ||
| 2006 | 16,120 | 13,192 | 2,928 |
| ||
| 2007 | 9,740 | 12,131 | (2,391) |
| ||
| 2008 | 8,911 | 7,724 | 1,187 |
| ||
| 2009 | 8,233 | 7,331 | 838 | 1838 |
Prior Medical History
30 The Plaintiff suffered a whiplash injury in a motor vehicle accident in about 1985 requiring physiotherapy for a period. He could not recall being off work. He made a claim for damages and his condition resolved over a period of approximately 12 months. He did not have any further trouble with his cervical spine until the transport accident in 2006.
31 The Plaintiff injured his lower back in about the mid 1980's whilst working with Vic Rail. He was off work for about 12 months before resuming duties with Vic Rail as a clerk. He continued to have chiropractic treatment and physiotherapy for his back after resuming work with Vic Rail and also took Mobic, anti – inflammatory medication.
32 Under cross examination the Plaintiff agreed that he would experience flare ups in his back pain over many years. He agreed that his G.P. had arranged a CT scan of his back in December 2005 after he complained of lower back pain; and he suffered back pain and flare-ups during 2007. He still wears a back brace.
33 From about 1996 the Plaintiff suffered from anxiety and stress related problems. From time to time he attended for treatment. He did not cope well with the clerical work while working for VLine and as a result suffered stress related injuries which required counselling. He had time from work and worked restricted hours commencing in about August 1996 until being made redundant in about August 1997. He was on workers compensation as a result of the stress related injuries.
34 Since leaving VLine he continued to attend his GP and have physiotherapy for his lower back condition. He also wore a back brace when his lower back was troublesome.
35 His low back condition would play up from time to time, given the nature of cleaning duties. He had the occasional day off due to low back pain. He was coping well with his cleaning work prior to suffering the neck injury in February 2006. Very occasionally the heavier gardening work would cause his lower back injury to flare up.
36 I note that in his affidavit the Plaintiff states to the effect that he no longer has the capacity to perform the labouring work previously undertaken when he worked for Countryside Meats, in a slaughterhouse and as a track ganger for Vic Rail, attributing this incapacity to his transport accident. In my view it is clear from the admissions otherwise made by the Plaintiff that his incapacity to perform such labouring jobs arose from his lower back injury which ultimately necessitated him being transferred to clerical work.
Transport Accident
37 On 25 February 2006 the Plaintiff was involved in a transport accident, whereby the vehicle in which he was making a left hand turn was subjected to a rear end collision as a result of which he sustained injuries to his neck, back and chest. He described being jerked forward and back and experiencing immediate neck pain. He was in fact the third car in a 3 car pile up. His car was still driveable after the collision.
38 Following the accident the Plaintiff’s wife drove him to St. John of God Hospital where X-rays were taken of his cervical spine. He was given a soft cervical collar and analgesia and discharged home.
Initial Treatment
39 The Plaintiff was initially treated with physiotherapy and anti-Inflammatory medication. He kept working as a cleaner for the University. Initially he did not seek any other treatment because he thought the neck pain would resolve However, within six weeks he developed pain in the left shoulder associated with a burning sensation in the arm. This worsened over months and he developed pins and needles in the left hand. He attended Mr Duncan for physiotherapy of the neck commencing 9 March 2006 for about 18 occasions during 2006.
40 On 26 July 2006, after his neck symptoms had not resolved with physiotherapy, he consulted his General Practitioner Dr Taylor. I note that the clinical records of Dr Taylor indicate three attendances subsequent to the transport accident when no reference is made to any neck symptoms.
41 Again there was no improvement and he endeavoured to self manage his condition and was ultimately referred to Mr David Wallace Neurosurgeon.
42 Mr Wallace undertook an MRI of the Plaintiff's cervical spine which demonstrated pre-existing degenerative change which became symptomatic following the transport accident. Mr Wallace did not recommend an operation at that stage but recommended a restriction of activity and suggested that the Plaintiff might benefit from some further physiotherapy treatment.
43 Mr Wallace referred the Plaintiff to Mr Peter Teddy Neurosurgeon who first examined him on 12 October 2007.
44 In August 2008 Dr Hogg administered a series of facet joint injections at various levels of his cervical spine. The injections did not relieve the symptoms and the Plaintiff suffered severe pain in the cervical spine region which persisted for about a month. The symptoms then settled somewhat for a few weeks before becoming severe again for another 3 or 4 weeks. In order to relieve the symptoms. he took more Panadeine Forte and attended physiotherapy more frequently.
45 Since the transport accident the Plaintiff states that his low back condition has become slightly worse. However his main symptoms are to the cervical spine, the shoulders and the left arm.
Employment following Transport Accident
46 After the transport accident the University of Ballarat provided the Plaintiff with short term alternative duties. However, the University was unable to offer him duties that he could safely perform and he ceased work on 15 November 2007 and his employment was formally terminated on 7 February 2008. Thereafter he continued in his gardening business working about 6 to 10 hours per week.
47 Following the accident the Plaintiff states that he had difficulty pushing the lawnmower. In about November 2007 he purchased a self-propelled lawnmower to make the task easier and tried to confine himself to doing lighter pruning, using the whipper-snipper and other similar gardening duties which do not involve heavy lifting, bending or twisting of the neck and lifting above shoulder level. He now works at his own pace and takes breaks when needed. Nevertheless he often suffers some discomfort while performing this work. He attempts to avoid work which aggravates his neck injury. However in order to service his customers and retain their work he does on occasions undertake some tasks which leave him in pain afterwards.
48 The Plaintiff stated that he is no longer able to use his medium size chainsaw any more nor do a lot of overhead tasks or otherwise strain his neck. He now uses a small electric "alligator" pruning saw which enables him to prune smaller branches.
49 The Plaintiff further stated that the earnings from Time Out Home Care dropped between the financial years 2006 to 2009 because he now works fewer hours due to his neck injury and has abandoned any dreams for expanding the business.
50 As a result of the neck injuries the Plaintiff states that he lost the bulk of his pre accident earning capacity. He is now able to continue to work as a gardener in the business working reduced hours between six and 10 hours per week and working when he is fit to do so. He can no longer perform the heavier tasks and knocks back work which he knows is beyond his capacity.
51 The Plaintiff also performs some light office cleaning work once per month under the business name GMK Cleaning. This involves vacuuming, emptying the bins, wiping down the tables and cleaning windows.
52 The Plaintiff states that the Defendant referred him to a job employment agency, and he has been on its books for at least the last 2 years. With the restrictions as to lifting, bending and the like he has been advised by his doctors that he might be able to work up to 20 hours per week. The employment agency has not been able to find him suitable employment; and he has not had any job interviews. He has been unable to find suitable employment through his own endeavours.
53 Under cross examination the Plaintiff said that he had sent his resume to Bunnings, gardening places, and several retailers but has not been offered an interview.
54 He does not place advertisements in the newspaper for his gardening. He has done so in the past but could not remember when.
Current Treatment and Restrictions
55 Currently the Plaintiff attends physiotherapy every 3 weeks or so. Since 1 April 2009 he has attended the Ballarat Health Services Pain Management Clinic. He commenced a formal pain management program at the Queen Elizabeth Centre in early February 2010 which he attends weekly.
56 He currently takes the following medication: Mobic anti-inflammatory 15 mgs daily; Nortryptiline 25 mgs at night, Tramal SR 100mgs once to twice per day and Panadeine Forte and Pariet 20mgs as required.[4] He also uses Dencorub regularly.
[4] Dr Taylor PCB 43
57 The Plaintiff attends his General Practitoner every couple of months for renewals of the various prescriptions.
58 The Plaintiff referred to the following activities which he performed prior to the transport accident which he says he now cannot do as a result of his neck pain, or does only in a restricted way:
a)
he was a keen motorbike rider and also had a trial bike. He would often go riding with his son. Since his neck injury he has sold both bikes. He cannot cope with vibration and rough terrain;
b)
he has now sold his boat as he could not cope with the neck pain and associated headaches;
c)
he used to play racquet ball once or twice per week which he can no longer do;
d) he used to be a keen camper, which he has had to curtail;
e) he used to be a keen jogger several times a week, but this is not possible because of the jarring involved, and he will walk no more than 30 minutes; f) he used to re paint his house, perform simple renovations and be able to lay pavers. He is now restricted in performing any of these tasks; g) he now attends football matches much less frequently, although he agreed, under cross examination, that he would attend football matches by bus with a group of supporters; h) he has difficulty walking the dog;
i) he suffers sleep disturbance; j)
he is limited in his physical activities with his two grandchildren aged 3 and 6 years;
k) he is limited in attending social functions; l) he has difficulty driving a motor vehicle, particularly long distances; m)
he performs simple household tasks although he agreed, under cross examination, that he did perform housework, tries to do the washing and looks after his own garden; and
n) his concentration has reduced with the medication.
Evidence of Treating Doctors
59 The Plaintiff first attended Mr Duncan Physiotherapist on 9 March 2006, or within 2 weeks of the transport accident, when he took a history of whiplash injury following a rear end collision on 25 February… with ongoing niggling cervical symptoms referred forward over the scalp and temple, put in a collar.[5] He also took a past history of occupational sciatica consistent with his back problem. He took his social history as a cleaner and then provided treatment.
[5] Exhibit B Clinical Notes
60 The Plaintiff attended the physiotherapist four times before his first attendance at his the general practitioner complaining of ongoing neck problems.
61 Dr Scott Taylor General Practitioner commenced treating the Plaintiff for his neck symptoms in July 2006 when he took the following history:[6]
Shoulder and neck ache on the left persists. Neck stiffness worse at night after lying down for a few hours. Worse after mowing lawns. Is also a cleaner. Trying to get treatment through TAC from accident in February. Had initial physio for neck trouble then." [On examination] Tense left trapezius. Tender left paraspinal area around C5-6 ….Limited neck rotation both directions. Full shoulder range of movement. No impingement detected. Pain only when scapular rotation occurring. Assessment, neck strain exacerbated by work and mowing. Management, continue Mobic, Panamax, local treatment, explain neck exercises, isometric contractions and have a referral back to the physiotherapist.
[6] Ex 4 Clinical Notes
62 Dr Taylor reported that the Plaintiff’s transport accident aggravated previously undiagnosed asymptomatic degenerative changes in his cervical spine which caused neck pain radiating to his left shoulder and left arm. Dr Taylor treated the Plaintiff conservatively with pain relief and anti-inflammatory medication and otherwise referred him for specialist review.
63 In June 2009 Dr Taylor reported that the Plaintiff’s injury had stabilised and he continued to work 6-10 hours per week with lawn mowing and gardening duties and was also looking for appropriate work through a job employment agency. Dr Taylor further noted that prior to his neck injury he had been working about 17 hours per week cleaning and about 20-23 hours per week gardening. Accordingly, his work capacity has been significantly reduced. When Dr Taylor saw the Plaintiff in September 2009 he had attempted to perform extra lawn mowing, which had aggravated his neck pain.
64 Mr David Wallace Neurosurgeon reported on 21 March 2007 as follows:[7]
He is capable of doing appropriate work but should avoid as much as possible working with his neck extended, that is with his head looking up such as when he is cleaning high windows. He should also avoid working in jobs which involve repetitive bending or twisting of the neck and also such activities as hard pushing and scrubbing activities which also aggravate his pain. Lifting heavyweights above his head with both arms or lifting heavy weights more than 5 kg with his left arm should also be avoided as much as possible. With appropriate modifications to his work activities he should be able to complete a normal working life.
[7] PCB 30
65 Mr Peter Teddy Neurosurgeon examined the Plaintiff on 12 October 2007 when the Plaintiff complained of neck pain and a burning sensation in the left upper extremity. While the Plaintiff was having difficulty working above his head he continued working part-time as a cleaner. Prof Teddy found that the Plaintiff had approximately 50% reduction of movement in the cervical spine but no abnormal neurological signs in the upper extremities. In conclusion Professor Teddy noted that there was no indication for foraminal decompression as his major problem was his neck pain and not radicular pain. He otherwise did not recommend surgical intervention but recommended continuing conservative treatment and facet joint injections.
66 Dr Malcolm Hogg Staff Specialist Anaesthesia and Pain Management assessed the Plaintiff on 31 July 2008 for his pain condition at the Royal Melbourne Hospital Interventional Pain Clinic. On examination the Plaintiff, who was wearing a soft collar, demonstrated a diminished range of motion of the cervical spine in all directions but there were no neurological anomalies of the upper limbs, nor any pain on neural stretching. Dr Hogg further noted fairly widespread cervical spine degeneration with asymptomatic canal stenosis…
hence much of the pain relates to axial pain, from the disc and/or facet joints in both the upper region on the right and the changes seen at C5-6, C6-7 on the left. For this reason he proceeded to diagnostic blocks under
sedation[8]…on 1 August 2008. The Plaintiff reported that these injections aggravated his symptoms.[8] PCB 45
67 On 1 April 2009 the Plaintiff was again seen by Dr Hogg at the Ballarat Health Services Pain Management Clinic with a view to participating in a Pain Management Program. Dr Hogg further notes that the stenosis might require that he has an operation in the future.
Medico-Legal Opinions requested by the Plaintiff
68 Dr A.G. Capes Industrial Physician first examined the Plaintiff in November 2007 when he complained of neck pain and difficulty turning his neck. He occasionally had shoulder pain and intermittent left arm pain but no longer suffered pins and needles in his hand. All neck movements were reduced and painful. At that stage his medication included Tramal, Mobic and Panadeine Forte when required. Dr Capes considered that the Plaintiff did have a work capacity subject to the kinds of restrictions previously outlined by Mr Wallace.
69 Dr Capes reviewed the Plaintiff in September 2009 when he noted that the neck pain had persisted together with intermittent shoulder pain. The Plaintiff also had headaches extending from the neck up to the posterior skull area to the Vertex. He still gets a burning feeling in both arms but to a lesser extent than previously. The neck and shoulder pain is aggravated by neck movements, especially neck extension and rotation. Any movement with the arms up aggravates neck and shoulder pain. Vibration and heavy lifting also aggravates the pain. The Plaintiff reported that he could only manage 6 to 10 hours work per week. In conclusion, Dr Capes noted that the Plaintiff continued to have significant neck pain with radiation proximally to the skull and also to the shoulders and occasional neurological symptoms in the arms. He is struggling to cope with 6 to 10 hours work per week. He has no capacity for pre injury duties but is capable of light part-time work with appropriate restrictions.
70 Mr S Schofield Orthopaedic Surgeon examined the Plaintiff in March 2009 taking a similar history to Dr Capes. On examination Mr Schofield noted that the Plaintiff's range of movement was restricted, but with some apparent reservation of effort… as when not conscious of being observed, his range of
movement was better,[9] but there was a definite significant restriction of extension. Neurological examination of his upper limbs was entirely normal…[10]
[9] Cf examination of Dr Elder PCB 64
[10] PCB 60
71 Mr Schofield concluded that the transport accident caused significant aggravation of degenerative change in the cervical spine which has caused permanent impairment in his work capacity and lifestyle. He is not able to resume his pre-injury employment and is restricted in the amount of gardening he can perform. Mr Schofield further noted that it seems likely that he will be a candidate for a two level anterior cervical fusion in future.
Medico-Legal Opinions requested by the Defendant
72 Dr David Elder Consultant Occupational Medicine performed an occupational assessment of the Plaintiff in November 2007 and confirmed that he was then unable to resume his pre accident employment and that this was likely to be permanent.
73 Mr John Hart Consultant Orthopaedic Surgeon performed an impairment assessment of the Plaintiff in December 2008 when he complained of pain in the lower neck extending to both shoulders and down in both upper extremities to just beyond the elbows. The Plaintiff was attending physiotherapy about once every three weeks and taking Tramal, Mobic, Nortryptiline and Panadeine Forte as required. On examination the Plaintiff was tender over the whole cervical area and all movements of the cervical spine were markedly restricted to just a few degrees in each direction, although Mr Hart also noted some voluntary restriction of movement in the cervical spine.
74 Mr Hart agreed with Professor Teddy's assessment and concluded that the Plaintiff will continue to suffer from persistent neck pain and have limited movement. Operative treatment was not indicated and in view of the failure of the medial branch blocks it was appropriate that he be referred to a Pain Management Clinic. Mr Hart also agreed that the Plaintiff could not return to his pre-injury employment but would be capable of performing the modified duties he was performing when terminated and possibly expanding his home maintenance business.
75 Mr Geoffrey Klug Neurosurgeon also examined the Plaintiff in December 2008 when he took a similar history to Mr Hart. On examination he noted that there was some minor inconsistency between involuntary and voluntary movements in the restricted range of movement of the cervical spine, but overall he did appear to have a genuine restriction. Neurologically no abnormality was detected and no signs of radiculopathy or spinal cord involvement.
76 Mr Klug concluded that the Plaintiff suffered from symptomatic cervical spondylosis consistent with an aggravation to his pre-existing degenerative changes. His current symptoms will persist with some waxing and waning on an indefinite basis. It is appropriate that he wear a soft cervical collar from time to time, particularly when driving and otherwise take simple pain relieving and anti-inflammatory medication. Mr Klug accepted that he did have genuine significant symptoms related to his condition which would interfere with his ability to undertake physical types of employment, particularly involving above shoulder height work or driving vehicles.
Radiological Investigations
77 A CT scan in September 2006 showed degenerative changes at C5/6 and C6/7.
78 An MRI scan of the neck in January 2007 showed multilevel degenerative changes particularly at C5/6 and C6/7, more marked on the right than the left side and moderate central canal stenosis and moderate right C6 foraminal stenosis.
Video Surveillance
79 No covert video surveillance of the Plaintiff was shown to the Court.
Applicable Law and Assessment of Evidence
Meaning attributed to “serious” injury under paragraph (a)
80 For the purpose of the current application the Court is concerned with the principles and guidelines applicable to the definition of serious injury under paragraph (a) only of section 93(17) of the Transport Accident Act 1986.
81 In Humphries and Anor v Poljak11 Crockett and Southwell JJ formulated an appropriate test to determine whether an impairment is “serious”:
“...the task of a judge confronted with the requirement to determine an
application made pursuant to sub-s.(4)(d) when reliance is placed on sub-
s.(17)(a) may be stated in the following terms: He is to be affirmatively
satisfied (the burden of proof being borne by the applicant) that the injury
complained of is in fact a serious injury. 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 judgement 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”?” [emphasis added]82 It is the impairment and not the injury which is assessed as being serious12as at the date of the application.13 In consequence, the medical evidence and the lay evidence must satisfy the Court, as at the date of the hearing of the Plaintiff's impairment to the requisite extent.
83 In Mobilio v Balliotis, Mobilio and Transport Accident Commission14 the Court of Appeal, reaffirmed the Humphries v Poljak test and further stated that in reaching a conclusion, the judge must form an opinion which involves elements of fact, degree and value judgment, of a kind dependent on the judge’s appreciation of the whole of the relevant circumstances:
… the test formulated in Humphries v Poljak is intended for the guidance of those concerned with the words of the statute, ’serious long-term impairment or loss of a body function’. It is not to be treated as if it was itself a statutory formula.15
84 I note, particularly from Humphries v Poljak16, that I am required to focus not so much on the injury itself, but rather on the consequent impairment or loss of the body function. My determination must be objectively made. It is my
[1992] 2 VR 129 @ 140
Humphries at 143
Belcher v Wolfenden (unreported - Court of Appeal 24 April 1996)
[1998] 3 VR 833 see Brooking J.A. @ 836-7, Ormiston J.A. @ 853, Phillips J.A. @ 858.
Per Brooking JA @ 845
@ p.134
opinion as to the seriousness of the impairment, not that of the Plaintiff or his
medical practitioners, which is decisive.[17]
Order of Inquiry
[17] @ p.137
85 The logical order of inquiry is set out in Richards and TAC v Wylie[18]:
The inquiry which the judge must make under para (a) focuses his attention first upon whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is "serious' and "long term" : see Humphries v Poljak at 138 and 140, per Crockett and Southwell JJ, The `division' to which their Honours referred emphasises, and was intended to emphasise the nature of the inquiry which a judge is called upon to make under sub-paragraph (a)
Analysis of the Evidence re Nature of Injury
[18] (2000) 1 VR 79 President Justice Winneke said (at 86-87)
86 There are certain matters about which there is no dispute and which I accept for the purpose of this application:
a)
The Plaintiff suffered a whiplash injury in a transport accident on 25 February 2006 which caused an aggravation to pre-existing asymptomatic cervical degenerative disease;
b)
The Plaintiff's neck injury has been treated conservatively with physiotherapy, pain relief and anti-inflammatory medication;
c)
While the Plaintiff incurred a pre-existing neck injury, this appears to have resolved or at least become asymptomatic prior to the transport accident; and
d)
In the mid-1980s the Plaintiff suffered a low back injury, the consequences of which prevented him from undertaking the kind of manual labour which he had previously performed and which required ongoing physical treatment, occasional wearing of a back brace and medication.
Credibility of the Plaintiff
87 The next matter to consider is the question of the Plaintiff’s credit which in the circumstances of this case has a significant bearing upon the outcome of the Plaintiff’s application.
88 In relation to the “family” gardening and cleaning businesses, in my view the evidence of both the Plaintiff and his wife was unsatisfactory in the following respects:
a)
The Plaintiff produced no primary business records whatsoever to evidence the nature, extent or duration [that is per week or per annum] of the home gardening and cleaning businesses, either before or after the transport accident;
b)
The Plaintiff was vague and evasive in his answers concerning the number and nature of clients, consistently answering in a general way;
c)
The Plaintiff gave no satisfactory explanation as to his failure to meet work standards when employed by the University or the consequences of him being relocated to a different campus;
d)
Mrs Koll claimed to have no detailed knowledge about the gardening performed or regular clientele and otherwise claimed to play no roll in record keeping;
e)
Mrs Koll claimed that the Plaintiff did all the bookkeeping. At the same time the Plaintiff claimed that he kept no records;
f)
Having regard to the gross income declared in the accounts for the gardening/cleaning businesses, and taking the Plaintiff’s estimate of earnings as $20 per hour of work actually performed, would equate to about 8½ hours per week for the financial years 2003 and 2008 and 15 hours per week for the financial year 2006;
g)
Both the Plaintiff and his wife gave implausible accounts for the reason why the businesses and tax arrangements were structured as they were; and
h)
Mrs Koll had no knowledge about any cleaning work currently performed by the Plaintiff.
Consequences
89 The statutory definition requires that the degree of seriousness of an impairment be judged:
[19] Humphries at 140
a) By its consequences to the Plaintiff (subjective). This requires an examination of the Plaintiff's before and after position - an internal evaluation; and b) By comparison with other cases in the range of possible impairment or losses (objective)[19]. This necessitates a comparison of the identified impairments with other cases in the range of possible impairments or losses - an external evaluation. 90 In R.J. Gilbertson Pty. Ltd v Skorsis[20] Buchanan J.A. commented that:
…an injury might properly be described as slight yet been responsible for
serious and long term impairment or loss of a body function.
Subjective Test
[20] [2000] VSCA 51 at para. 25
91 The subjective approach was defined by Marks J in Ninkovic v Pajvancek21:
I think that for an impairment to be serious, it must have consequences which are serious for the Plaintiff , and having regard to the context of the statute in which this definition appears, I am of the opinion that a serious impairment which is long-term is one which has a serious consequence for the Plaintiff in the form of disablement from work or interference with enjoyment of life. [emphasis added]
92 In applying a subjective test in this context, it must be kept in mind that the object of the inquiry under subsection (a) is to determine the seriousness of the impairment - in other words, whether the impairment is, on the appropriate comparative basis, certainly more than significant or marked, and at the least very considerable. For this purpose, it is necessary to see how the impairment has affected the Plaintiff and whether the impairment causes pain and suffering. However, it does not mean that the particular anguish or distress suffered by the Plaintiff as a result of the Plaintiff's attitude towards the impairment is to be taken into account. In other words impairment is not more or less significant or marked or very considerable by reason of the attitude of the Plaintiff to the impairment. The Plaintiff's perception of the impairment is not the test.
93 The impairment's seriousness should be judged on its own terms and not on the basis of how the Plaintiff perceives or responds to it. This proposition was endorsed in Ingram v Ingram:22
...accepting the appellant's evidence that the degree of self-consciousness, loss of self -esteem and insecurity to which she deposed are legally relevant, her application would still fail. Personal distress of the kind to which she testified, however genuine, does not, in my view, elevate a misfortune to the level of serious injury.
Pre-Existing Conditions
94 The statutory definition requires that the impairment results from the injury sustained in the subject transport accident. Therefore if there is a pre-existing condition, the court must consider what the evidence discloses as to the prior condition of the Plaintiff to see whether the additional impairment resulting from the transport accident injury was `serious' as defined.
95 In this case I am satisfied on the evidence that the Plaintiff’s neck was
[1991] 2 VR 427 @ 429 This proposition was approved by the Full Court in Humphries v Poljak @
137, and in Petkovski v Galletti [1994] 1 VR 436 @ 442.
per Callaway JA [1996] 2 VR 435 at 438 -439
asymptomatic prior to the transport accident. However, it is equally clear that his capacity for work and other activities had already been restricted by his lower back injury from which he admitted flare ups, occasional time off work and continuing medication.
96 It is also apparent that the Plaintiff’s work history has been fragmented since his back injury in the mid 1980’s, which caused him to be off work for about 12 months. Thereafter he worked in a clerical position for some years until he ceased work after stress related claims. From this time it is apparent that the Plaintiff did not again hold a full-time position with an employer.
97 Since the late 1990’s he has worked part time, first as a cleaner with Wizard Cleaning, for which no hours were given; and then as a gardener for Ballarat University, for about 17 hours per week. He has clearly never returned to the kinds of labouring jobs which he performed prior to his back injury.
98 Following the transport accident he continued to work as a cleaner for the Ballarat University [for about 21 months] as well as continuing his family gardening business until his University employment effectively ceased in November 2007.
99 I note that the Plaintiff’s gross income from the Ballarat University cleaning job actually peaked in the first full financial year following the transport accident and for the financial year ended 30 June 2008 still exceeded his gross income from that source for both financial years 2003 and 2004.
Work Capacity and Inability to Earn Income
100 In Cropp v TAC[23] Ormiston J.A. addressed how loss of income earning capacity is relevant to a determination of serious injury for the purpose of the Transport Accident Act 1986:
Inability to earn any income almost invariably will, and an inability to earn one's former income will more often than not, have an effect of characterising an impairment or loss as serious. It does not follow, however, that one must be able to predict with a reasonable degree of certainty the inability of the applicant to earn an income into the indefinite future. If it has prevented the applicant from earning an income for a number of years and if that applicant requires retraining in circumstances where it is uncertain whether that applicant will successfully re-enter the workforce, then the impairment or loss may, depending on the circumstances, be characterised as serious, without the necessity of showing that the inability to earn an income is itself long-term. The impairment or loss must be long-term, i.e. at least extending beyond a few years, but the consequences may be serious and thus the impairments or loss serious without it having to be shown that the particular consequences as to inability to earn income also continue into the indefinite future. Of course, in many cases it will be easier to describe the consequences as serious if it is clear that those consequences include a loss of earning capacity or an inability to earn more than a minimal income, which is also long-term. So loss of income for four years may not result in a characterisation of the impairment or loss as serious if it is reasonably clear that the applicant will return to a former occupation within 12 months or so. But if there is total loss of income for a period of three or more years and if there is no real probability that the applicant will return to the occupation formerly pursued then, depending upon the totality of the circumstances including other effects upon the applicant's quality of life, the impairment or loss may be characterised as serious, although there is no proof that an inability to earn income or similar income will continue on for many years after the making of the application. In other words it is sufficient if the impairment or loss is proven to be long-term without the necessity of the applicant proving that one of the consequences, namely loss of income earning capacity, will also be long-term. As I have said, the latter may help to establish proof of seriousness but that may also be established without proof that each of the consequences is long-term. In each case the question is whether the impairment or loss is “serious” within the meaning of the section.
[23] 1998 3 VR 357 at 360-361
101 In Maloney v Mulling[24], the Court of Appeal considered the relevance of likely future interference with work capacity:
If upon the evidence it could be concluded that the applicant in the long-term would probably suffer considerable difficulty with his back and left leg so as to interfere with his working capacity, then a finding of ‘serious injury’ could well be made.”
[24] [1994] 1 VR 436 at 442
102 Mr Wallace reported that the Plaintiff should be able to complete a normal working life, with appropriate modifications: specifically, avoiding neck extension or repetitive bending or twisting of the neck or lifting heavyweights above his head or with his left arm more than 5 kg. This assessment was essentially confirmed by Dr Capes, Mr Schofield, Mr Hart and Mr Klug.
103 Mr Schofield, Mr Hart and Mr Klug each noted some reservation of effort or voluntary restriction upon examination, suggesting a greater range of movement than claimed.
104 The clinical notes of Dr Taylor indicate that prior to the transport accident the Plaintiff had continuing pain and treatment for his low back.
105 Within the recommended physical restrictions the Plaintiff conceded that he is capable of washing windows, using limited steps, mowing lawns, pruning trees with a whipper-snipper, vacuuming offices and performing other light cleaning.
106 There is no indication at present or in the foreseeable future for surgical intervention [Mr Wallace, Mr Teddy]; although Mr Schofield noted that it seems likely that the Plaintiff will be a candidate for a two level anterior cervical fusion in future; and Dr Hogg further noted that the stenosis might require that he has an operation in the future.
107 Having regard to all of the medical opinions, in my view Mr Klug most succinctly described the Plaintiff’s status as follows, namely that:
• He suffered from symptomatic cervical spondylosis consistent with an aggravation to his pre-existing degenerative changes; • His current symptoms will persist with some waxing and waning on an indefinite basis; • It is appropriate that he wear a soft cervical collar from time to time, particularly when driving; • He should otherwise take simple pain relieving and anti-inflammatory medication; and • He does have genuine significant symptoms related to his condition which would interfere with his ability to undertake physical types of employment, particularly involving above shoulder height work or driving vehicles. 108 I agree with Defendant Counsel's observation that on the evidence it is inexplicable why the Plaintiff cannot perform pre injury cleaning and yet can perform up to 12 hours gardening per week. There has been no satisfactory explanation given as to why he could not perform light cleaning, of the kind currently performed for one client, on a more extended basis.
109 Although the Plaintiff stated that he had been registered with an employment agency for the past 2 years, under cross examination he admitted that he has not actually applied for any specific jobs. There has been no satisfactory explanation as to why the Plaintiff could not perform non labouring jobs, of a clerical or administrative nature, within the kinds of physical restrictions specified by the doctors.
imports a test which is relative to the range of possible impairments or be satisfied by comparison across the whole range of possible losses or impairments of body functions and thus not confined to a specific body function.
110 As a witness, in my view the Plaintiff was generally evasive and provided minimal information and explanation to many questions relating to his capacity or incapacity to perform various activities. In particular, I am not persuaded that he has established on balance the claimed reduction in work capacity generally or in his family gardening/cleaning businesses. Furthermore, the Plaintiff’s persistent lower back impairment would likely also prevent him from performing at least some of the activities which he attributes to his neck injury.
Comparisons
111 It is not enough to perform a `before and after' evaluation of the Plaintiff and say whether the identified differences are serious for him. However, for the reasons already referred to above, it has been difficult to make an informed comparison between the Plaintiff’s work capacity before and after the transport accident.
112 In addition, the differences (i.e. the impairments and their effects) must be judged on an external comparative basis. These other impairments should not be limited to other impairments in the same category.[25]
[25] see Humphries at 140
113 In Cropp v Transport Accident Commission26, Ormiston JA noted at 359:
Lest it thought that, by approving the statement referring to a "body function" (in the singular), the court was acceding to the view that the seriousness of an impairment must be judged only by reference to other possible impairments of the specific "body function in question", it should be noted that in opening their reasons (apparently delivered orally) the High Court did not so confine the test and said as 211:
The term "serious" in s.93(17) of the Transport Accident Act 1986 (Vic)
losses of body functions or permanent disfigurements…
114 In this case I accept that the Plaintiff has pain in his neck, which is particularly persistent when he engages in certain kinds of activities. However, there is no evidence of radiculopathy, and to date he has not been subjected to any surgery or recommendation for surgery in the foreseeable future.
115 The Plaintiff conceded that his low back pain has become slightly worse since the transport accident but maintained that his neck was his predominant problem. His treatment has comprised physiotherapy, pain relief and a trial of facet joint injections, which did not provide any lasting relief.
116 In relation to his recreational and social restrictions, the Plaintiff gave evidence of reduced capacity and certain recreational activities which he says have ceased altogether. At the same time, he does engage in family, social and recreational activities; undertakes limited domestic chores, maintains his own garden and continues to perform light labouring work on a part time basis.
117 I do not wish to trivialise the restrictions which the Plaintiff may now suffer as a consequence of the pain and impairment to his neck. However, while the consequences of his impairment may at most be described as considerable, I am not persuaded that it satisfies the requisite test for serious injury. In reaching this conclusion I have had particular regard to:
• My findings as to the Plaintiff’s lack of credit, as described above; • The continuing conservative treatment for his neck condition, which has not involved any surgery [or any recommended surgery in the foreseeable future] and no neurological involvement; • The persistence of his lower back impairment, the consequences of which were apparent from his work and medical history but otherwise
[1998] 3 VR 357 @ 359;
minimised by the Plaintiff;
• His age, and the usual associated decline in sporting and recreational activities; • His prior fragmented work history; • The extent to which he does engage in domestic social, recreational and employment activities; • His likely capability of a normal working life as long as he adheres to certain physical restrictions and • His likely greater capacity for gainful employment. 118 To a lesser extent I have also had regard to the following circumstances:
•
Immediately following the transport accident, the Plaintiff’s car could still be drive; and he did not require the attendance of an ambulance;
•
While the Plaintiff sought physiotherapy treatment shortly following the transport accident, there is no mention of any neck symptoms or complaint in the clinical notes of his general practitioner until some five months later; and
•
The Plaintiff continued to work as a cleaner for the University, at least while somewhat modified duties were available, for a further 20 months while continuing to work in his family businesses.
Conclusion
119 I do not find that the Plaintiff suffers a serious injury for the purpose of paragraph (a) as a result of the transport accident.
Orders
120 The Plaintiff’s application for leave to commence common law proceedings is refused.
121 made:
After hearing the parties on the question of costs the following orders were b) Liberty to apply in respect to any release from implied undertakings.
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