Kousis v Transport Accident Commission
[2020] VCC 1234
•18 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03477
| PAUL TOLLEY KOUSIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19 and 20 May 2020 | |
DATE OF JUDGMENT: | 18 August 2020 | |
CASE MAY BE CITED AS: | Kousis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1234 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – whether injuries caused by transport accident – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Richards v Wylie [2001] 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Demmler v Transport Accident Commission [2018] VSCA 284; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr B Johnson | Slater & Gordon Ltd |
| For the Defendant | Mr R H M Attiwill QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a transport accident on 11 October 2013 (“the transport accident”).
2 The application is brought pursuant to subsection (a) only of the definition of “serious injury”.
3 The plaintiff’s case is that by reason of the transport accident, he has suffered injury to his spine.
Relevant legal principles
4 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.”
5 The definition of “serious injury” as set out in s93(17) of the Act is, relevantly, as follows:
“‘Serious injury’ means—
(a) serious long-term impairment or loss of a body function;
… .”
6 In forming a judgment as to whether the consequences of an injury are “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’”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
7 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, as set out in s93(17), the relevant injury must also be “long term”.
8 The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
9 The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4] The task of assessing the pain and suffering consequences of an injury has been held to be largely a question of impression and value judgment.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act.
[4]Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission (ibid) at paragraph [52]
[5]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
10 In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[6] See generally HuntervTransport Accident Commission [2005] VSCA 1 at paragraphs [23]-[26]
11 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7]
[7]Petkovski v Galletti (ibid)
12 Applying the principles set out in Petkovski v Galletti,[8] in an application like this, where it is alleged that the plaintiff may have had relevant pre-existing or co-existing conditions, it is the consequences of the additional injury or the aggravation of the existing injury which must be assessed. To undertake this task, the application must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[9] If I am satisfied that the additional impairment is “serious” and “long term,” then the applicant will have demonstrated that he is suffering from a “serious injury” under the Act.[10]
[8](Ibid) at 443
[9]Petkovski v Galletti (ibid) at 444
[10]Supra
13 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon affidavits from his wife, Mrs Aimee Francis Kousis, and also his mother, Mrs Eleftheria Kousis. Both deponents were required to attend for cross-examination. The plaintiff’s wife was available and was cross examined. The plaintiff’s mother was unavailable to be cross-examined for health reasons. On that basis, the plaintiff withdrew his reliance on his mother’s affidavit, which was removed from the plaintiff’s Court Book as tendered.
14 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[11] The defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross-examination.
[11]The Plaintiff’s Court Book was marked as exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
15 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and medical history
16 The plaintiff was born in May 1968 in Melbourne, Victoria. He is presently fifty-two years of age. He has been married to his wife, Aimee, for seventeen years. The couple have three children, who still reside with them.[12]
[12]Ex P1, page (“p”) 5
17 The plaintiff completed school until Year 11. After leaving school, he worked in a furniture factory and also played soccer professionally with various State league clubs for three years. He then did a computer-programming course for twelve months. After some time, he realised that office work was “not for me” and found work managing a fashion store in Chapel Street for a couple of years.[13]
[13]Ex P1, pp5-6
18 After some time spent in Bali working in various businesses, he opened up a retail business in Prahran. That led him into starting a company called Tolley Interiors, that specialised in furnishing and presenting high-end properties for sale.[14]
[14]Ex P1, p6
19 The plaintiff was involved in a number of extremely successful businesses in the years that followed, but suffered catastrophic financial detriment due to the Global Financial Crisis (“GFC”). Eventually he was forced to declare bankruptcy and to sell the family home. The bankruptcy occurred in about 2012 or 2013.[15]
[15]Ex P1, p6
20 The plaintiff’s financial troubles caused a “rough” period in his life during which he had symptoms of feeling “very low”. During this time, he escalated his drinking as an “ill-advised coping mechanism”. He was caught drink driving and had his licence suspended, which caused him to start taking the bus for transport.[16]
[16]Ex P1, pp6-7
Previous medical history
21 During periods in 2012 and 2013, the plaintiff was struggling to cope with his lifestyle changes and financial losses. He took Valium at times to help him cope. In late-June 2013, he resolved to cut down on his problem drinking. He made positive changes in this direction over the next few months and felt he was “back on track” with his health and business at that time.[17]
[17]Ex P1, p7
22 In October 2013, the plaintiff suffered a right knee injury while playing Aussie Rules football. His right leg twisted underneath him and he felt knee pain. The next day, he presented to the Emergency Department of the Sandringham Hospital, where he was advised that he had probably suffered a ligamentous strain of the knee. He was told to rest and try to minimise weight bearing.
The accident
23 The plaintiff described the accident in the following terms:
“On the morning of 11 October 2013, I was riding a bus (as my licence was still suspended) on my way to work. I worked then – and now – as a manager & event co-ordinator at the Spirit Station Pier, which is a function centre in Port Melbourne that my wife and I own.
While I was on the bus, there was a heavy collision between the bus and a cement truck. The force of the collision flung me forward into the windscreen of the bus. I recall glass shattering everywhere, with broken glass fragments becoming embedded in my skin. I had abrasions and grazing to my arms and torso, as well as bruising of my forehead and left shoulder, and pain in the left shoulder and ribs.
I attended the emergency department of the Sandringham Hospital where it was noted that I had hurt my back and my head. I had multiple cuts and grazes including glass fragments still stuck in my arms, back and head. I was not admitted for in-patient treatment, and instead left with my wife Aimee. I checked myself [out] against the hospital’s recommendation. I was bedridden and unable to use the right side of my body for about two weeks.
On 4 November 2013, my wife [took] me to my GP, Dr Bennett, due to ongoing back pain following the accident, for which I was prescribed Valium, Panadol and Nurofen … .
On 18 December 2013 I started seeing Ms Sarah Novotny, a clinical psychologist, for anxiety and mood disturbance. I was sleeping particularly poorly post-accident, both due to back pain and mounting anxiety … .
Unfortunately the intervention of Ms Novotny and Dr Bennett did not stop me from relapsing into very heavy alcohol use following my transport accident. I used alcohol as a crutch to cope with my pain, sense of anxiety, and frustration at my physical limitations.
In February 2014 Ms Novotny recorded that I had pain in my back, neck and shoulders, as well as headaches. In March 2014 I attended Mr Greg Harris, a physiotherapist, who recommended that I have a CT scan of my spine to investigate my ongoing back pain. I had the CT scan done on 1 April 2014. I am told that it showed a minor disc bulge at T7/8 as well as a central prolapse at T8/9 in the thoracic spine ... .”[18]
[18]Ex P1, pp7-9
24 In May 2014, the plaintiff developed severe epigastric pain which required him to be admitted to Sandringham Hospital. Afterwards he was told to give up alcohol and smoking, but was struggling to cope with a lot of stressors in his life, particularly following the transport accident. He continued to go through periods of heavy alcohol consumption. His alcohol use tended to correlate with his physical pain levels and also with his degree of anxiety and stress.[19]
[19]Ex P1, p9
25 During subsequent periods of heavy drinking, he has experienced episodes of epigastric/abdominal pain and alcohol-related pancreatitis, which have required numerous short hospital admissions and painkillers for acute abdominal pain. He has undergone alcohol rehabilitation twice in Thailand in early 2015 and late 2016, at the referral of his treating general practitioner, Dr Sharon Monagle. In August 2017, he had his gallbladder removed following a bout of pancreatitis.[20]
[20]Ex P1, p9
Health and return to work following the transport accident
26 In about July 2014, the plaintiff was able to resume consistent work at the Spirit Station Pier. He started on about ten hours a week at first, with limited bending and lifting by reason of his injuries – particularly his back pain. Over the years, he has gradually increased his work hours. [21]
[21]Ex P1, p9
27 In late 2014, the plaintiff commenced a new antidepressant, Cymbalta, which he took in addition to occasional Zoloft and Valium for his anxiety and depression. He continued with physiotherapy and clinical Pilates, as well as psychological counselling with Ms Novotny. He took Panadol and Voltaren for his back pain and neck pain, along with Targin for “breakthrough pain”.[22]
[22]Ex P1, pp9-10
28 In February 2015, the plaintiff and his family went to Hawaii for a break. His mental state was still volatile. He was coping okay at work, albeit still on reduced hours. Some weeks he would try to increase his hours or duties and this would lead to a “flare up” in back and neck pain. He struggled to sustain his concentration for longer periods at work.[23]
[23]Ex P1, p10
29 In July 2015, the plaintiff was admitted to The Alfred hospital for pancreatitis, alcohol detox and right forearm numbness. On 17 August 2015, he underwent an MRI scan of his cervical spine due to suspected cervical radiculopathy. He was told that the MRI scan showed minor central disc bulging at C3-4, and mild bilateral foraminal narrowing at C5-6, causing minor C6 nerve-root encroachment. In January 2016, he saw Dr Anita Vinton, neurologist, for follow up in relation to his right arm and right shoulder pain and weakness. Dr Vinton’s view was that his right arm paraesthesia was resolving and there was no convincing evidence of C5-6 radiculopathy.[24]
[24]Ex P1, p10
30 In 2016, the plaintiff underwent a pain management program, which consisted of physiotherapy, Pilates and counselling. He found that the pain management program gave him a somewhat better understanding of, and insight into, his pain, and some strategies for trying to manage it.[25]
[25]Ex P1, p10
31 In the second half of 2016, the plaintiff’s mood worsened, partly because of the death of his father. He relapsed into alcohol abuse. In about November 2016, he underwent a one-month rehabilitation/detox and cognitive behavioural therapy program in Thailand. On return to Australia, he continued seeing a psychologist. He also resumed working part-time hours, about fifteen to twenty hours per week, but with some fluctuations, at the Spirit Station Pier.[26] On 16 January, 2019, the Spirit Station Pier business closed due to the expiration of the lease. The plaintiff has not worked since that time.
[26]Ex P1, p11
Evidence of the Plaintiff
32 As referred to above, the plaintiff swore two affidavits. The relevant evidence as to the pain and suffering consequences which the plaintiff experienced as a result of the transport accident, is as follows:
Experience of pain and treatment
(a)he continues to be troubled by “near-constant” spinal pain, particularly affecting his upper back and neck regions. Despite the passage of time, his level of pain has not diminished and the pain continues to be a very considerable inhibitor upon his daily activities.[27] His back pain varies in intensity from mild/moderate to severe. The intensity of the pain tends to correlate with the level of his physical activity. When he was working, he almost invariably felt sore and tired after a day at work;[28]
[27]Ex P1, p17
[28]Ex P1, p11
(b)he suffers from persistent neck pain, though it is not quite as bad as the back pain. His neck feels sore and stiff most of the time. He experiences recurrent neckache which often radiates to the area between his shoulder blades. The neckache also frequently spreads up his neck. He feels this in the form of tension headaches, which can come on multiple times per week. The pain also spreads to his right shoulder area;[29]
[29]Ex P1, p12
(c)he continues to be under the care of his general practitioner, Dr Monagle, at the Beaumaris Medical Centre. His general practitioner prescribes a relaxant medication, Valium, 5 milligrams. Higher dosages have been prescribed from time to time. His doctor and he have attempted to reduce the dosage of this medication;[30]
[30]Ex P1, p17
(d)the Transport Accident Commission has agreed to fund an exercise physiologist three times per week. He also sees a physiotherapist once per week and does a combination of physiotherapy, Pilates and acupuncture;[31]
[31]T24, L22-31
Medication
(e)his current medication is Endep nightly and Valium at a minimum twice per day;[32]
[32]T24, L15-19
(f)in addition to prescribed medication, the plaintiff “lives off” non-prescription medications and generally takes a minimum of eight Panadol or Nurofen tablets daily, roughly on a six-hourly basis. He finds these medications beneficial in taking the edge off his level of his pain, but there is no lasting relief from the pain;[33]
[33]Ex P1, pp17-18
Sleep
(g)at night he often experiences persistent moderate back pain, despite being at rest. His sleep is impacted and he finds it difficult to get comfortable.[34] He tends to toss and turn in bed, and often wakes up in discomfort. He needs to take Temazepam at times, to help him sleep;[35]
[34]Ex P1, p17
[35]Ex P1, p12
Right knee
(h)his right knee continues to be an issue, though his knee pain is neither as bad, nor as constant, as his neck and back pain. He tends to develop soreness in his right knee after running or physical exertion, so he now cannot jog or play soccer. His back pain also hinders him from those activities, as he finds that the impact of trying to jog or run for a few minutes sets off his backache;[36]
[36]Ex P1, p12
Activities of daily living
(i)as a result of his back pain, his mobility is restricted.[37] In particular, lifting, twisting and repetitive bending are difficult and tend to provoke increased back pain.[38] His backache also gets worse after prolonged sitting;[39]
[37]Ex P1, p17
[38]Ex P1, p11
[39]Ex P1, p12
(j)because of his neck pain, he often struggles to use a computer or sit at a desk for more than fifteen minutes. He has to take frequent breaks and finds his concentration is readily disrupted by his back and neck pain;[40]
[40]Ex P1, p12
(k)prior to the transport accident, he enjoyed playing golf and considered himself to be a good golfer. He has not played since the transport accident as he is scared to try due to his back pain; [41]
[41]Ex P1, p13
(l)similarly, he used to often played tennis with friends and family prior to the transport accident, but now his involvement is much more limited. He sometimes takes his son to tennis lessons or tennis tournaments, but the physical strain associated with travelling causes him increased pain. Sometimes he needs to take increased medication in advance; [42]
[42]Ex P1, p13
(m)he has occasionally tried having a hit of tennis with his son, but he ends up “paying for it” afterwards, through increased back pain later that day or evening;[43]
[43]Ex P1, p13
(n)he used to enjoy playing basketball with his son and daughter, but has not been able to play basketball with them since the transport accident. On the odd occasion when he watches his kids play at the local park and tries to participate and throw the basketball to them, he ends up suffering from severe neck and shoulder pain, such that he can hardly get out of bed. Prior to the transport accident, he enjoyed playing these various sports, and did so with gusto. In contrast, now his physical endurance is much more limited;[44]
[44]Ex P1, p13
(o)in his social, recreational and domestic activities he is constantly “on guard” to protect his spine against undue strain;[45]
[45]Ex P1, p17
Psychological consequences
(p)his mood is very up and down. He finds it hard to tolerate the fatiguing effect of coping with daily pain. He feels depressed having to deal with the lifestyle and work changes that have beset him ever since he was hurt in the transport accident. His resilience is low. On bad days, he feels lost and unmotivated. He has occasionally had thoughts of suicide. Even on good days his concentration waivers. When he was working, he struggled to work efficiently, due to his fluctuating moods;[46]
(q)after days when his pain has been particularly bad, he tends to catastrophise about the restrictions he has endured since the transport accident. He wonders whether he will ever get back to how he was. His negativity impairs his motivation and enjoyment of life and it contributes to relapses in alcohol use;[47]
(r)he feels anxious much of the time. He is very protective of his children and constantly frets about their safety. He gets stuck in “loops of anxiety”, particularly when confronted with stressful situations. He sometimes feels wound up and stressed for no particular reason;[48]
(s)his resilience and ability to cope with stressors has decreased since the transport accident. He keeps getting relapses of alcoholism and anxiety. While he had some issues with drinking even before the accident, his ups and downs have now become much worse. He thinks this is mainly due to the weariness of constant pain and the strain of having to deal with his physical limitations;[49]
(t)his wife and he quarrel a lot. Their physical and emotional intimacy is not what it used to be prior to the transport accident. The plaintiff is so focused on his own issues that he cannot spend quality time with his wife or understand her perspective on things;[50]
[46]Ex P1, p14
[47]Ex P1, p14
[48]Ex P1, p14
[49]Ex P1, p15
[50]Ex P1, p15
Pecuniary disadvantage
(u)the injuries which he sustained in the transport accident have had a very significant impact on his capacity to engage in employment. He has been involved in entrepreneurial roles in the past, such as running clubs and bars. That remains the area in which he feels most comfortable and which he most enjoyed in terms of work. It is because of this that he continued to work at the Spirit Station Pier until its closure, though subject to limitations in terms of hours and duties because of his back pain;[51]
(v)while at Spirit Station Pier he worked about twenty hours per week. Some weeks he worked comparatively fewer hours. He found that in those weeks his back pain tended to be more manageable. Some weeks he worked more hours, and this caused flare ups in his back pain, such that he struggled with his pain levels and his sleep. On a few occasions he put in long shifts due to urgent need (for example for important functions). Those occasions led to quite severe flare ups of back pain;[52]
(w)at work, he struggled with strenuous tasks, such as bending, lifting and twisting. His work at the business had always involved a physical component. Prior to the transport accident, he regularly did things like restocking fridges, lifting cases of wine, helping to set up furniture and tables for events, and repetitive carrying of trays and other items. Following the transport accident, he was less able to engage in these physical tasks. When he did undertake physical activities, he suffered from increased back pain, either straight away or later that evening. He tended to lean on others to do the hands-on tasks. Even when he restricted himself to light managerial duties, he struggled with recurrent back and neck pain, which affected his concentration;[53]
(x)he is not currently working. Having regard to his physical limitations, he is disinclined to contemplate re-entering the entertainment or hospitality field. He does have previous experience operating more traditional businesses such as decoration and interior design. Even in that sort of work, there is a fair degree of physical activity, and he is concerned about how his spine would stand up to such activity.[54]
[51]Ex P1, p11
[52]Ex P1, p13
[53]Ex P1, p14
[54]Ex P1, p18
33 Under cross-examination, the plaintiff gave the following relevant evidence:
(a)he sometimes uses the name Tolley Kousis. His mother calls him Tolley because his Greek name is Apostolis. He used that name when he was running the company Tolley Interiors;[55]
[55]T25, L5-16
(b)the last time he used the name Tolley Kousis in business, was about twenty years ago. When shown various business documents, he conceded that he may have used that name more recently. He said he used the name “not as a legal entity. It’s more as a designer name …;”[56]
[56]T26, L1-22
(c)he agreed that on the Spirit Station Pier website, he was described as the boss of that business. He said that was “pretty much” correct but “I wasn’t playing that role …”;[57]
[57]T28, L13-21
(d)when asked when his financial troubles commenced, he said that it was around the GFC;[58]
[58]T30, L8-21
(e)he agreed that his drinking escalated once he had sold his final asset, which was his family home. That was also when they entered into an agreement to take on Spirit Station Pier and get it up and running. He described this period in the following way: “I was having a few drinks during the day, so I tried to address it by going to see a doctor and make sure that I could … nip it in the bud ’cause it wasn’t in my nature to drink during the day;”[59]
[59]TT30-31
(f)when pressed on how much he was drinking at that time, he agreed that he would be drinking eight to ten drinks “almost every day … That’s why I wanted to address it ’cause it wasn’t in my nature …;”[60]
[60]TT31-32
(g)on 28 March 2012, he consulted a general practitioner by the name of Dr Osborne for depression and to obtain a mental health care plan. He described himself at that time as being “down … I was feeling sorry for myself and I was upset that I’d lost a lot of money”;[61]
[61]T33, L2-21
(h)at this time, he was suffering from “low mood”, “appetite disturbance”, “poor sleep quality,” “irritability”. He had had these symptoms for “months”.[62] He also agreed that at that time, he was experiencing daily feelings of anxiety, had poor sleep and was smoking and drinking;[63]
[62]TT35-36
[63]T37, L22-31
(i)in June 2013, he was drinking “at least 10 drinks a day,” most days. He agreed with a note recorded by the doctor that he started drinking early in the morning and “he feels sick and gets the shakes if he doesn’t drink”. When asked if this was right at that time, he replied “I think so”;[64]
[64]T40, L1-15
(j)he was very concerned about his drinking at that time and wanted to try to do something about it. When asked if he did do something about it, he said: “Yeah, I think I did … .” When asked what it was that he did, he replied “stopped drinking”. When asked how that went, he replied “I can’t really remember. You have good days and bad days … .” When asked whether on a bad day he would relapse back into excessive drinking, he agreed with that proposition;[65]
[65]TT40-41
(k)he agreed with the content of a note of a consultation dated 21 June 2013, in which it was recorded that he had managed to drastically reduce his alcohol intake, but had had two relapses. He agreed with the note that said “Once he has one drink, he has a lot”.[66] He agreed that he had been prescribed Diazepam at this time, to help with agitation. He said that the notes accurately summarise the circumstances in which he then found himself;[67]
[66]See Ex D1, p119
[67]T41, L4-27
(l)it was put to him that he had inaccurately told Professor Davis on 6 December 2017 that he was in “amazing health before the accident”.[68] When pressed on this issue, he eventually agreed that he was not in amazing health prior to the accident;[69]
[68]T42, L7-28
[69]T43, L25-28
(m)it was put to him that he had inaccurately told Dr Weissman on 6 October 2015 that he had not suffered from depression at all before the transport accident. In response to this, the plaintiff answered “There was no way I was feeling the way I was then, compared to … prior to the accident. There is absolutely no way I’ve ever felt like the way I’ve been feeling since the accident;”[70]
[70]TT51-52
(n)it was put to him that in his interaction with Dr Hayman, psychiatrist, he had denied and minimised his prior alcohol use and a pre-existing depressive condition. In response to this, he insisted that he had told the truth to Dr Hayman and said that prior to the transport accident, he was just having a “few too many drinks”. When pressed in relation to this matter and asked whether he was serious that consuming up to ten standard drinks a day on most days constituted “a few too many drinks,” he replied “Yes … yes, I am. Compared to … what I did to myself … I don’t know the word, but 30, 40 drinks versus eight, 10 or up to 10 drinks a day, one’s having a few too many drinks and other one is self-medicating;”[71]
[71]TT53-54
(o)he was shown a document entitled “Bankruptcy Statement of Affairs” and agreed that his handwriting appeared in various parts of that document.[72] He denied that he hid the Spirit Station Pier business from his creditors in this document;[73]
[72]T55, L6-14
[73]T57, L9-14
(p)for the purpose of starting a new business, he entered into a company structure with another family. The company name was Kousis Alexopoulos;[74]
[74]T61, L5-16
(q)it was put to him that in the Bankruptcy Statement of Affairs, he had not declared his managerial role in that company. To this, he replied that he had made reference to Kousis Alexopoulos within that document. He referred Senior Counsel for the defendant to the document at page 245 of Ex D1, which demonstrated that this information was correct;[75]
[75]T63, L9-20
(r)he denied that after his bankruptcy, he continued to run the original business. He said “No, we stopped and restarted … [as] Spirit Station Pier”;[76]
[76]T63, L27-30
(s)he said that his wife was the director of the company that took on the Spirit Station Pier business. He agreed that he was the main person in the business and that his wife was doing very little. He said that she took an interest in event coordinating, but that was all;[77]
[77]T64, L1-21
(t)he said that he was not a shareholder of this company, he was an employee of the business;[78]
[78]T65, L11-21
(u)he disagreed with the proposition that he went back to work several weeks after the transport accident. He said that it was more like months;[79]
[79]T66, L1-4
(v)he recalled that his wife had terminated his employment “because I was useless at the time … I remember something of that nature, Your Honour, getting terminated.” When asked whether or not he was deeply shocked by his wife’s actions, he replied “I didn’t think too much about it”;[80]
[80]TT 69-70
(w)when it was suggested to him that his wife never terminated his employment, he replied, “I think I was terminated … I can’t remember exactly … ;”[81]
[81]T70, L9-22
(x)he confirmed, when asked, that he had only been separated from his wife for short periods of time. He agreed that he might go and live with his parents and then go back and reside with his wife after a few days or a week: “Something like that, yep.” It was put to him that he had never been separated from his wife for months on end. To that he replied “[we] [s]eparated once for about six weeks … when I had the restaurants in South Yarra”;[82]
[82]T71, L15-28
(y)he agreed that by 4 January 2014, he was back at work at Spirit Station Pier on light duties.[83] He disagreed that as at 24 March 2014, he was working up to thirty hours in that business;[84]
[83]T78, L2-6
[84]T76, L4-23
(z)he could not recall ever seeing a document headed “Employment Contract Paul Kousis,” which was contained at page 224 of Ex D1;
(aa)he agreed that he was not separated from his wife from late-2013 until 17 June 2014;[85]
[85]TT79-80
(bb)he did not think that he was separated from his wife when she terminated his employment;[86]
[86]T88, L1-5
(cc)it was put to him that a part of his wife’s letter to the Transport Accident Commission, which stated that as at 17 June 2014 the plaintiff had not conducted any meaningful or productive duties at the work premises, was in fact wrong. In response to this, he said “Yeah, but I might have stopped, like, you know, might have tried to return to work but it obviously didn’t work, did it?”;[87]
[87]T81, L2-28
(dd)he denied acting with his wife to fabricate a letter to send to the Transport Accident Commission, which created an employment agreement, and stated that the employment agreement had been terminated and that he was not working as at 17 June 2014;[88]
[88]T82, L3-8
(ee)he agreed that when the business was closed in January 2019, he was acting as the general manager of that business;[89]
[89]T85, L2-8
(ff)he agreed that his relationship with his wife had been a difficult one and had caused him a lot of upset;[90]
[90]T87, L12-31
(gg)he agreed that since the transport accident, he had relapsed on numerous occasions into abusing alcohol.[91] He said the last time had abused alcohol was just before Christmas in 2019;[92]
[91]T88, L6-10
[92]T88, L11-21
(hh)he said that since the business closed in January 2019, he had “sold things for income and borrowed money, but no, I haven’t undertaken any work”.[93] When pressed on whether he had worked since the business closed in 2019, he replied:
[93]T88, L22-26
“… I have tried to … god knows … I’m coming up with things but nothing’s working. I’ve made no money … I’ve tried to come up with ideas and dream up things and reinvent myself, but it’s not … happening … .”[94]
[94]T90, L15-20
(ii)he gave evidence that an entity called “Tolley Design” was registered after the transport accident because people said to him “Why don’t you go back to do what you’re best at”; [95]
[95]TT92-93
(jj)he agreed that on his LinkedIn page he had an entry which indicated he was “directing designer, Tolley, 2000 to present”. He agreed that by that entry he was currently advertising himself as being a directing designer at Tolley Design.[96] He agreed that he had been trying to obtain work as a directing designer in his capacity at Tolley Design: “Yeah, that was the plan, yeah;”[97]
[96]T109, L8-15
[97]T109, L16-17
(kk)he agreed that he did work for A1 Quality Tiles from about mid 2019: “Yeah, well, the plan was to sell some tiles. They … put me on their website. They were going to provide a business card. That never came through ’cos I didn’t get any sales … .” He denied knowing why it was that he had requested a medical certificate from a medical practitioner on 1 August 2019 in order to take time off from that business: “I wasn’t clocking in or clocking out, I wasn’t getting a wage … .;”[98]
[98]T110, L8-25
(ll)he agreed that he had travelled overseas for leisure many times since the transport accident, including to Fiji, Vietnam, Thailand, Singapore, Malaysia, Japan, Indonesia, Greece, Hawaii and Spain.[99] He agreed that the pain from which he suffered did not stop him from participating in any of those overseas trips.[100] He acknowledged that if there was an entry in his passport for a particular destination of travel, then that was an accurate record;[101]
[99]TT94-95 and TT100-103; DCB 299-320
[100]TT102-103
[101]TT100-101
(mm)he said that his two trips to Thailand, which were in part for alcohol rehabilitation, also involved cognitive behavioural therapy and pain management. It was put to him that these trips were only in respect of alcohol rehabilitation. He rejected this proposition;[102]
[102]T98, L8-17
(nn)he denied engaging in any strenuous physical activity, such as water sports or bike riding, while he was overseas;[103]
[103]TT96 and 101-102
(oo)he agreed that video surveillance taken of him showed that he was able to stand, walk and talk on his mobile phone. He denied that this was in an unrestricted way. He said that he was in pain but that he could do it “and I was medicated then, and I’m medicated now”;[104]
[104]T104, L2-27
(pp)it was suggested to him that he did not feel any pain in his neck at the time of the transport accident. He disagreed with this proposition;[105]
[105]T121, L22-30
(qq)he agreed that he had not described any pain in his neck in paragraph 8 of his first affidavit.[106] He was referred to page 9 of Ex P1, at paragraph 16, where he described the pain he was experiencing at that time. He agreed that he did not refer to any neck pain in that paragraph.[107] He could not recall whether or not he had described any pain in his neck when he was taken to Sandringham Hospital immediately following the transport accident.[108] He agreed that in paragraph 22 of his affidavit sworn on 12 November 2018,[109] he did not identify suffering from any neck pain;[110]
[106]TT121-122
[107]T123, L3-11
[108]TT122, L11-30
[109]Ex P1, p12
[110]T123, L12-22
(rr)it was put to him that he is not presently taking any medication for neck pain. In response to this proposition, he replied:
“I think the neck and … your back is connected … you know, it varies … day to day. Like, for example, today, I am really struggling with my neck and back, and I’ve got the worst headache, you wouldn’t believe … it’s all connected – I’m sorry.”[111]
[111]TT123-124
(ss)it was put to him that his neck pain started spontaneously at least a year and a half after the transport accident. To this proposition, the plaintiff replied “It came on after, yeah … it’s linked to the back. That’s where it comes from;”[112]
[112]TT124-125
(tt)he agreed that in the second half of 2016 his mood had “worsened” for two reasons:
(i) the passing of his father, and
(ii) alcohol abuse.
He qualified this answer by emphasising that his use of alcohol was “to deal with pain … you’ve got to deal with the demons … the repercussions of this crash. So my mood has been all over the place for years;”[113]
[113]TT127-128
(uu)when asked about his right knee, he said “It still bothers me.”[114] He was asked what consequences the right knee has for him, to which he replied:
[114]T129, L18-20
“… it prevents me from running … walking, I do some cycling but … it’s a struggle … but I have to deal with it because I don’t have a licence … when you do cycle you’ve got to look up and that really … strains my neck and back … .”[115]
[115]T129, L21-30
(vv)he agreed that his right knee interferes with him playing soccer;[116]
[116]T129, L21-23
(ww)he said that it was his back that interferes with his ability to play golf, because it interferes with his golf swing;[117]
[117]T130, L1-8
(xx)he agreed that his knee prevents him from playing tennis and also from playing basketball;[118]
(yy)he agreed that he has had numerous admissions to hospital in relation to chronic pancreatitis. He said that those admissions had made him feel “terrible”;[119]
(zz)it was put to the plaintiff that he no longer has any pain in his back, to which he replied “No. Why would I be going to see physios and doctors and taking … painkillers for? Because for back pain and neck pain;”[120]
(aaa)in response to questions about his Bankruptcy Statement of Affairs, the plaintiff denied that he had omitted to include items of jewellery in his declaration about what assets he possessed, asserting that the jewellery belonged to his wife. He did acknowledge that there was a valuable painting which had not been declared on the bankruptcy declaration;[121]
(bbb)the plaintiff agreed that he had sold a table owned by his family to a friend. He also agreed that the invoice for the table was composed as if the table was being sold by a company owned by his wife called Tack Life Pty Ltd. His explanation for this was that his friend had “asked for an ABN number because he wanted to put it in his boardroom … I don’t have an ABN number so had to use Aimee’s otherwise I wasn’t going to get the money;”[122]
(ccc)it was also put to the plaintiff that the invoice was a false invoice, not only because it purported to represent Tack Life Pty Ltd as the owner of the table, but also because the amount listed as the sale price – being $11,000 – was not the price which the plaintiff had sworn to as being the price of the table during cross-examination. The plaintiff agreed that he had sworn to the fact that he had been paid the sum of $13,100 for the table. He also agreed that the invoice was for $11,000. The plaintiff denied that the invoice was false. His explanation for the fact that he was paid more than the sum on the invoice was “[my friend has] … got some compassion and he decided to give me some more money. Okay;”[123]
(ddd)he was asked about the sources of various large sums that had come into his bank account over the last few months. He said that these were sums that were either being loaned or gifted to him and his wife or his children from his father-in-law;[124]
(eee)he was shown a number of Facebook photographs which depicted him on holiday. It was put to him that those photographs showed him having an enjoyable time. To this proposition, the plaintiff replied “I’m doing my best … to smile in front of my children”;[125]
(fff)the plaintiff agreed that in about May 2017, he and his wife had been involved in a police incident where he ended up being put in the prison cells overnight, and in the course of being subdued by police, was “kneed in the coccyx and right shoulder and back”. A medical note recorded that the injury on this occasion was in the same area as the “previous damaged ones from previous injury and worsened injury”. The plaintiff agreed that he recalled this incident. He also agreed that the police had injured him in the manner which had been recorded in the medical note.[126]
[118]T130, L9-11
[119]TT131-132
[120]T132, L8-11
[121]TT137-139
[122]TT200-202
[123]TT204-206
[124]T212, L2-30
[125]TT216-217
[126]TT217-218
34 In re-examination, the plaintiff gave the following additional evidence:
(a)he was taken back to the note in the medical records which referred to him performing some work for A1 Quality Tiles. He reiterated that he was not an employee with A1 Quality Tiles. He was directed to the words in that note which say “needs a certificate”. He said that he needed a certificate because he was on a Community-Based Order. On that date, he was ill and therefore needed to be excused from the work under the Community-Based Order;[127]
[127]T220, L21-31
(b)he was asked questions about the cross-examination which had suggested that he had serious problems with depression and alcohol abuse prior to the transport accident. In response to this, he said that he had never been prescribed antidepressant medication prior to the transport accident. He agreed that he had not been to the clinic at all about any sort of mental health problem between May 2012 and April 2013. He agreed that the consultation in June 2013 was in relation to managing his alcohol addiction. He agreed that the note indicated that he had “managed to drastically reduce his alcohol intake ...”. He agreed that from June 2013 to the date of the transport accident, there was no further consultation, either for any mental health issues or for alcohol problems: “No, I was doing well. I was like following, you know, I was getting on top of it. That’s why I went in and saw the doctor. I wanted to nip it in the bud and I did;”[128]
[128]TT223-226
(c)he said that he had never had any problems with his neck or back prior to the transport accident. He said that in relation to his general physical condition he was “very fit”. When asked to compare his pre-transport accident state with his present condition, he replied:
“… there’s no comparison. There is no comparison … I’m nowhere the person I was. I’m probably lucky that I was so fit … I wouldn’t have survived, I probably would have come out a lot worse had I not been as strong as I was … no – I can’t compare it.”[129]
(d)he was directed back to the Bankruptcy Statement of Affairs document and clarified that he was not in a partnership when he was operating the Spirit Station Pier business. He said that business was operated by a company. He was taken to page 245 of Ex D1 and confirmed that in answer to relevant questions regarding the content of that page, he had made reference to the company structure;[130]
(e)he was referred to questions which had suggested that he had not referred to any neck pain in his affidavit. He confirmed that he had referred to persistent neck pain in paragraph 26 of his first affidavit. He was taken to page 2 of Ex P1, which demonstrated that in the plaintiff’s Claim for Compensation, he had set out under the heading “Injury Details,” the fact that he was then suffering from back and neck pain. He was specifically asked whether or not he had hurt his neck in the transport accident, to which he replied, “Of course. I can’t move today;”[131]
(f)he was referred to questioning which suggested that he did not suffer any neck problems until July 2015. He was referred to page 17 of Ex D1, which was a report from Dr David Elder dated 17 February 2015. He agreed that under current complaints, that report set out that he had complained of spinal pain which can radiate towards his neck. In response to this line of questioning, he replied “Well, it’s always been the case”;[132]
(g)he said that as far as his physical problems go these days, his back and neck is a lot worse. He said that his right knee comes and goes, good days and bad days, but it does not compare to his back and neck.[133]
[129]T227, L5-16
[130]TT229-230
[131]TT232-233
[132]T223, L2-15
[133]T233, L16-22
The lay witness
Aimee Kousis
35 The plaintiff’s wife, Aimee Kousis (“Mrs Kousis”), swore an affidavit on 10 October 2019 and was cross-examined. She gave the following relevant evidence:
(a)prior to sustaining the injuries in the transport accident, the plaintiff was a fit and strong man who had played soccer over the years, but had never suffered any previous spinal injuries;[134]
[134]Ex P1, p21
(b)as a result of the GFC, the plaintiff encountered financial difficulties and was forced to declare bankruptcy. As a result, he and his wife went into a business called Spirit Station Pier, a function centre in Port Melbourne. Mrs Kousis was the company representative because of the plaintiff’s bankruptcy;[135]
[135]Ex P1, p21
(c)prior the transport accident, the plaintiff was the operations manager at the business. He was in charge of all activities at the business, including the manual handling of food and alcohol stocks, cleaning, setting up and taking down functions, and numerous other activities which required him to have a strong and moveable spine;[136]
[136]Ex P1, p21
(d)the plaintiff had sustained extensive spinal injuries in the transport accident. One immediate result of this was that the plaintiff’s capacity to undertake the tasks which he had previously performed in the business, became increasingly reduced;[137]
[137]Ex P1, p21
(e)following the transport accident, the plaintiff continued to attend at the business, but he struggled. Mrs Kousis had to take on a much greater role in the successful running of the business. The types of tasks which she performed included sales and marketing, business development, working front of house on busy weekends and pack down after functions. These were all tasks which, before the transport accident, the plaintiff had performed;[138]
[138]Ex P1, p22
(f)Mrs Kousis found that by reason of her husband’s spinal injuries, his physical tolerances were very considerably reduced. This was despite the use of a number of pain-relieving medications and other treatments which the plaintiff undertook to try and regain his spinal strength. Eventually, the business came to an end when the couple were forced to surrender the lease, with their last trading day being 16 January 2019. Since that time, the plaintiff has not been employed and it has fallen to Mrs Kousis to try and maintain the family income;[139]
[139]Ex P1, p22
(g)the plaintiff continues to be troubled by constant variable levels of spinal pain. He complains to his wife of pain, particularly in his mid to lower back, but in other levels of his spine also. This leads to intensive headaches which at times become terrible migraines which are debilitating for him. Mrs Kousis has also observed that the plaintiff is stiff and restricted in his movements because of his spinal pain, which limits his activities, even basic tasks such as emptying the dishwasher;[140]
[140]Ex P1, p22
(h)in addition to the plaintiff’s inability to work, his social, domestic and recreational activities have been impacted. The plaintiff’s sitting and standing tolerances are quite limited. The plaintiff struggles to bend and lift things. His ability to involve himself in the activities of their children has been greatly restricted. The plaintiff no longer plays golf, which he used to enjoy;[141]
[141]Ex P1, pp22-23
(i)the plaintiff regularly requires the use of painkilling medication, although he has gradually tried to decrease his reliance on that medication;[142]
[142]Ex P1, p23
(j)the plaintiff’s psychological response has been noticeable to his wife. The plaintiff becomes tired and irritable. He has Post-Traumatic Stress Disorder symptoms, including nightmares and flashbacks. When he travels in the car, he is an extremely nervous passenger and often fearful that some accident will occur. There have been periods when the plaintiff has resorted to drinking to try and deal with his problems, although his wife has encouraged him to cease drinking. At present, he seems to have been successful in that regard;[143]
[143]Ex P1, p23
(k)Mrs Kousis has observed significant changes in the plaintiff’s mood since the transport accident. The plaintiff suffers from poor sleep as a result of the pain, and this impacts on his mood, as he is often tired and irritable. His sleep deprivation at times causes him to be unreasonable and it affects his ability to think clearly and make daily decisions. The plaintiff is very different to the person he was before the transport accident, as he used to be very decisive, confident and an independent thinker.[144] The couple’s intimate relations have been very considerably adversely impacted and this has put some strain on their marriage;[145]
[144]Ex P1, p23
[145]Ex P1, p23
(l)most aspects of the plaintiff’s lifestyle have been significantly and adversely impacted by reason of his injuries. He still has a young family and activities to pursue, but to his wife’s observation, he pursues these activities in pain and thus does not derive the same enjoyment from them as he used to;[146]
[146]Ex P1, p23
(m)Mrs Kousis and her husband have been separated on four or five occasions, each time for periods of short duration. It would have been a number of weeks rather than a number of months;[147]
[147]TT146-147
(n)prior to the transport accident, Mrs Kousis did not think that her husband had “difficulties” with alcohol abuse. It was more that his habits were not suited to living a healthy and sustainable lifestyle, so she suggested that he see a general practitioner and discuss it;[148]
[148]T148, L9-28
(o)she observed that her husband was “disappointed” and “gutted” by their financial difficulties. She said that he was “trying to navigate around those thoughts and those feelings”. She thought that after the GFC he was “frustrated”;[149]
[149]TT150-151
(p)when the Spirit Station Pier business was started, the plaintiff took full control of that business, initially with a partner, who he ended up paying out;[150]
[150]TT152-153
(q)when the business closed it was called “SP6 Pty Ltd”. She was the sole director of that company;[151]
[151]T154, L10-23
(r)following the transport accident, her husband’s capacity to be involved in the business was “very limited”. The plaintiff “couldn’t help at all”.[152] Prior to the transport accident, “he was running the joint”;[153]
[152]T158, L4-8
[153]T158, L18-28
(s)she thought that her husband was an employee of the company prior to the transport accident.[154] She did not have a specific recollection of having a written employment agreement with her husband. She said that the “accounts officer did all that for us”;[155]
[154]T158, L26-31
[155]T159, L1-14
(t)following the transport accident, she took advice from the accountant because her husband was not able to work “so we had to terminate his employment”;[156]
[156]T160, L3-8
(u)she was shown a letter of termination addressed to her husband, dated 18 October 2013. She could not recall the date the letter was sent on, but she did recall writing it. She reiterated that she was advised to terminate her husband’s employment and did so on that advice. She said “Well, it was the right thing to do, he was not able to work”;[157]
[157]TT160-161
(v)she agreed that following the transport accident, her husband kept attending Spirit Station Pier: “I needed a lot of help, I had to ask him a lot of questions, how to do this, what to do with liquor licensing. He knew it all, it was all in his head.”[158] She said that it was “ages” after the transport accident that her husband first went back and started attending the premises, but she could not give a specific date;[159]
[158]T163, L3-6
[159]T163, L-12
(w)following the transport accident, her husband was unable to undertake any tasks in the business because “he couldn’t move. He was bedridden for ages.” When asked for how long this situation persisted, she said “I can’t remember the amount of weeks, but it was a while”;[160]
[160]T164, L15-21
(x)she could not recall whether her husband was paid when he began attending the business;[161]
[161]TT164-165
(y)when he returned to work, the plaintiff was “fairly limited”. She said that his work “was more consultation-based”.[162] She agreed that the plaintiff’s description of his duties at the business as “light duties,” was a proper description;[163]
[162]T166, L15-24
[163]T167, L5-8
(z)the plaintiff may have returned to work part time in March 2014: “He came back in some capacity, but I don’t remember the calendar dates for you;”[164]
[164]T167, L13-19
(aa)she denied that the company structure for Spirit Station Pier was created so that the business could be put out of the reach of the plaintiff’s creditors in his bankruptcy;[165]
[165]T167, L20-31
(bb)she was shown a letter addressed to the Transport Accident Commission dated 17 June 2014, which appeared to assert that she and her husband had been separated since late 2013. She said that if she put that in the letter, then it would be true. She disagreed that the information in this letter was a lie. She maintained that she may well have been separated from her husband for six months or more, “Paul and I have had a rocky relationship; we’ve always had a rocky relationship”;[166]
[166]TT171-173
(cc)she denied the document purporting to be an employment contract dated May 2013 for her husband, was a fabrication.[167] She was taken to a letter dated 25 November 2013, where she referred to her husband as being presently employed on a wage of $80,000 gross. She was asked why she would have written that if she had terminated her husband’s employment in October 2013. She said that it looked like “I must have made an error”. When asked if that was her explanation for the letter, she replied “Yes, it is, Your Honour”;[168]
(dd)she was taken to a part of the letter dated 17 June 2014, which stated that all of her husband’s pay was going to pay the house rent, which is $5,000 approximately per month. She was asked whether that jogged her memory about whether or not her husband was being paid at that time and if so, how much, she replied “Well, he must have been”. She said that it made sense that he was being paid $60,000 at that time, since five twelves are sixty and the house rent was about $5,000 per month. Despite this, she maintained that her husband’s employment had been terminated following the transport accident;[169]
(ee)it was put to Mrs Kousis that she never terminated her husband’s employment following the transport accident and there was never any need to employ other people to do his work. To this proposition, she replied, “That’s not true at all”;[170]
(ff)she was not aware that her husband may have been approached to work for a company call A1 Quality Tiles. When asked whether or not her husband had performed work for any company or organisation to her knowledge since the closure of Station Spirit Pier in January 2019, she replied, “Well he’s definitely tried. He’s tried to start businesses … Nothing’s eventuated;”[171]
(gg)when asked where she and her husband get the money to support her family at present, she said that they borrow money off her father. When asked how much has been borrowed since 1 January 2020 to the date of the hearing, she replied “it’d be a lot … My father and Paul had a very tight relationship.” When asked if anyone would be keeping an account of how much was owed, she replied that her husband would be doing that;[172]
(hh)neither she nor her husband have any income-producing assets, except for one investment property where the rent was just covering the mortgage;[173]
(ii)since the transport accident, she has seen her husband struggling with alcohol addiction. She said that he had done a lot of therapy and a lot of work on that problem.[174] She has not seen her husband have a drink since January 2020;[175]
(jj)she agreed that she had tried to encourage him to pursue his career in interiors, which she said he was very passionate about. She said that she had “looked at courses for him”;[176]
(kk)since the transport accident, she and her family had been on numerous overseas holidays.[177] She said that some of those trips had been for leisure and some of them had been for business. She said that when he was overseas, her husband swims in the pool. She said that he “definitely doesn’t do any of the water sports that the kids and I do. There’s no way. He just wouldn’t even consider that;”[178]
(ll)she said that her husband’s pancreatitis, which has seen him hospitalised, was “really traumatic” to watch.[179]
[167]TT174-175
[168]TT176-177
[169]TT177-179
[170]TT180-181
[171]TT180-182
[172]TT182-183
[173]TT183-184
[174]T184, L22-27
[175]TT184-185
[176]T185, L1-17
[177]T185, L18-20
[178]T187, L7-12
[179]T186, L9-27
The medical evidence
36 There were numerous medical reports contained in the tendered materials. Both sides filed reports from medico-legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
37 The plaintiff’s general practitioner, Dr Sharon Monagle, provided five reports in the Plaintiff’s Court Book. Dr Monagle noted that she has known the plaintiff in a professional capacity for the past five years and that he has been a patient of the Beaumaris Medical Centre since 2012. She did not see or treat the plaintiff at the time of the transport accident, having first met him on 5 May 2014, some seven months later. In a report dated 15 April 2015, Dr Monagle noted that the medical records recorded that the plaintiff was involved in a transport accident on or around 11 October 2013 and that he was first seen by Dr Peter Bennett on 4 November 2013.
38 Dr Bennett’s note of the same date records that the plaintiff then had soft-tissue injuries, including an injury to his back and many cuts caused by broken glass. Dr Bennett’s examination at that time was focused on the back injury and demonstrated a painful restriction of mobility on flexion, extension and lateral rotation. The plaintiff was treated with Valium for muscle spasm in his back and with Panadol and Nurofen for pain. He was advised to commence physiotherapy.
39 Dr Monagle noted that over the ensuing months, the plaintiff’s back pain continued to be a problem. She also noted that since November 2013, the plaintiff continued to have difficulties with low mood and anxiety. She said that prior to the transport accident, the plaintiff had a well-documented problem with alcohol dependence, first noted in his medical record on 4 May 2012. She said that he had experienced deranged liver function consistent with his alcohol dependence.
40 Dr Monagle said that on 7 June 2013, the plaintiff was noted to be interested in ceasing drinking and over the following three weeks, seemed to have some success with this. A note dated 21 June 2013 stated that the plaintiff had managed to greatly reduce his alcohol intake at that time. She said that at the time of the transport accident, the plaintiff’s licence had been suspended due to a drink-driving charge. Following the transport accident, it was noted by Dr Bennett that the plaintiff had relapsed into his alcohol addiction. She said that his relapse and more persistent difficulties since January 2014 have been caused in part by the transport accident. She said that his low mood, loss of self-efficacy and chronic pain since the transport accident, have all conspired to increase the plaintiff’s vulnerability to alcohol dependence.[180] She noted that he had been seen in the Emergency Department and been admitted to hospital with repeated episodes of gastritis and chronic pancreatitis secondary to his alcohol abuse.
[180]Ex P1, p37
41 In a report dated 8 May 2020, Dr Monagle said that the plaintiff, over the past four months, had achieved abstinence from alcohol with the assistance of Naltrexone, Diazepam, counselling and various physical therapies. She thought that he had an ongoing vulnerability to alcohol dependence. She thought that his pre-existing Alcohol Misuse Disorder had been exacerbated by the transport accident.[181]
[181]Ex P1, pp30-31
42 Dr Monagle said that following the transport accident, the plaintiff had returned to work, but was limited to fifteen to twenty hours per week. She said that the limitation was largely due to his back pain, which also prevents the plaintiff from undertaking tasks requiring heavy lifting. His back pain was aggravated by long hours. She said that he also suffered from fatigue which was likely to be due both to his chronic pain as well as his persistent anxiety. She thought he was somewhat disabled in relation to his capacity to work in the way he had prior to the transport accident. She said that the plaintiff also reported an inability to play sports as he had previously. She said that his ability to run, kick, throw, and to swing a bat, were all affected by his back and also his knee pain, which had been exacerbated by the transport accident.[182]
[182]Ex P1, pp41-43
43 In a report dated 4 April 2016, Dr Monagle noted that the plaintiff had presented on 7 August 2015 with right shoulder weakness associated with weakness and numbness in the right hand and forearm.[183] An MRI scan performed on 17 August 2016 revealed degenerative changes in the cervical spine, most notably at C5-6. Dr Monagle thought that the plaintiff’s shoulder weakness and pain were likely to represent part of a “chronic pain syndrome arising from his [transport accident], the trauma caused by this and some degree of central pain sensitization”.[184] She said that the plaintiff had not, at that stage, been able to return to his premorbid level of functioning. She said he described severe exacerbation of pain when he is more active, including working in his pre-injury role. She said that his shoulder injury contributed to this disability.
[183]Ex P1, p35
[184]Ex P1, p35
44 Dr Monagle was asked to express a view in relation to the link between the transport accident and the plaintiff’s neck injury. In response, Dr Monagle said that the medical records show that the plaintiff first complained specifically about neck pain on 2 March 2015. However, she noted that correspondence from Dr Nathan Johns, pain and rehabilitation physician, described the plaintiff reporting neck pain from shortly after the motor vehicle accident.[185] She thought that the transport accident was likely to be a cause of the plaintiff’s neck pain. She also thought that the neck pain was influenced by the plaintiff’s central pain sensitisation.[186]
[185]Ex P1, p36
[186]Ex P1, p36
45 In her most recent report dated 8 May 2020, Dr Monagle noted that the plaintiff continues to experience chronic pain affecting his neck and back and his shoulder girdle, with associated headaches. She said that he continues to have regular physiotherapy to manage his chronic pain, including seeing an exercise physiologist three times a week and a physiotherapist weekly. She thought that he would need ongoing physical therapies to manage his chronic neck and back pain into the future. She thought that the plaintiff has some capacity for work into the future, although his chronic pain imposes some limitations. She recommended that the plaintiff does not lift more than 5 kilograms and does not sit for more than thirty minutes at a time. She said that since it is now seven years since the transport accident, she thought it unlikely that the plaintiff’s experience of pain would change greatly from the way it is experienced at present.[187]
[187]Ex P1, p 31
46 Dr Monagle noted that the plaintiff had presented many times with low mood, anxiety, feelings of guilt and low self-worth. She said that he had been prescribed antidepressants and has in the past seen a clinical psychologist. She noted that he reports loss of motivation and interest, as well as poor sleep and concentration. She said that his behaviour can be erratic and impulsive. She said that it is likely that this relates to anxiety, depression and frustration with his physical limitations. She thought that the plaintiff’s mood and anxiety have been exacerbated by the transport accident and the resultant chronic pain, loss of ability to work in his chosen field and loss of sense of purpose.[188] She thought that the plaintiff’s ongoing vulnerability to alcohol dependence and to an experience of anxiety and depression may affect his future work capacity. She thought that the plaintiff’s future work capacity is likely to remain as it was at the date of that report in May 2020.[189] Dr Monagle commented that while the plaintiff had been treated for a depressive illness prior to the transport accident, it was thought to be reactive at the time and occurred in the context of significant life stressors.[190]
[188]Ex P1, p30
[189]Ex P1, p31
[190]Ex P1, p31
47 Mr James Morrison, physiotherapist, provided a report dated 19 December 2019 in relation to the plaintiff’s treatment at the Bluff Road / North Road Physiotherapy practice. Mr Morrison recorded that when the plaintiff was seen, there was a “spinal tightness (and muscular guarding) that corresponded with each of his described symptoms that he felt related back to the [transport accident] 4 years prior”.[191] In particular, he noted that tightness in the triggerpoints of the plaintiff’s cervicoscapular muscles reproduced his neck and shoulder pains. He also noted that the plaintiff’s right occipital headaches were able to be reproduced when examining the tightness and asymmetry at the C2-3 level of the plaintiff’s neck.[192]
[191]Ex P1, p46
[192]Ex P1, p46
48 Ms Christine Nguyen, physiotherapist, provided two reports in the Plaintiff’s Court Book. In the most recent report dated 19 May 2016, Ms Nguyen expressed the opinion that the plaintiff’s shoulder pain is referred pain coming from his neck, rather than specific shoulder pathology. She thought that it was unlikely that the motor vehicle accident on 11 October 2013 had directly caused the disc bulges that were evident from the radiological investigations that had been made of the plaintiff’s neck. However, she thought that the change in his movement patterns and general deconditioning from his thoracic spine injury contributed to the gradual increase of spinal stability and increased the plaintiff’s risk of developing a general condition such as this cervical disc bulge. She noted that the plaintiff’s neck pain was quite debilitating and affecting his daily function.[193]
[193]Ex P1, pp53-54
49 A report dated 19 March 2014 was included in the Plaintiff’s Court Book from Dr Greg Harris, sports physician. In that report, Dr Harris noted that the plaintiff had been involved in a transport accident, as a result of which he had continued to have pain in his thoracic spine, although that pain had somewhat abated. He said that the plaintiff had been able to return to part-time duties at work, predominantly in a supervisory role.[194]
[194]Ex P1, p66
50 The plaintiff was examined for medico-legal purposes by Dr David Middleton, occupational health and rehabilitation consultant, on 9 December 2019. In a report dated 8 January 2020, Dr Middleton expressed the view that the injuries suffered by the plaintiff in the transport accident had aggravated his pre-existing, age-related degenerative disease of both the cervical and thoracic spines, resulting in ongoing discogenic pain, most likely emanating from C5-6 and C8-9, all treated conservatively, with limited benefit and incomplete recovery.[195]
[195]Ex P1, p86
51 Dr Middleton thought that the plaintiff had been left with recurring cervicogenic headaches, aggravation of his vulnerable pancreas (due to increased alcohol intake), and had evidence of radicular signs, in that his right-hand grip strength is significantly diminished.[196] Dr Middleton said that at best, he thought the plaintiff could attend work three to five hours in any one day on non-consecutive days in any one week, where this would limit him to fifteen hours per week for the foreseeable future.[197] In that context, Dr Middleton expressed the opinion that the plaintiff had reached his optimal medical outcome and that his recovery had plateaued.[198]
[196]Ex P1, p88
[197]Ex P1, p88
[198]Ex P1, pp87-88
52 Mr Douglas Gardiner, orthopaedic surgeon, examined the plaintiff for medico-legal purposes on 11 January 2017 and 2 December 2019. In a report dated 2 December 2019, Mr Gardiner said that investigations indicate that the plaintiff had pre-existing cervicothoracic and thoracolumbar spondylosis, both of which were aggravated by the injuries suffered in the transport accident. He said that the plaintiff also had a pre-existing right knee problem which was temporarily exacerbated but which has settled to its pre-injury state. Mr Gardiner acknowledged that the right shoulder injury has not been assessed radiologically and that the right shoulder weakness apparently commenced almost two years after the transport accident.[199] As such, he did not think that it was specifically related.
[199]Ex P1, p119
53 The plaintiff was reviewed by Mr Russell Miller, orthopaedic surgeon, for medico-legal purposes. In a report dated 6 February 2019, Mr Miller confirmed his view that the plaintiff had suffered a musculoligamentous strain and aggravation of degenerative disease in the cervical spine and thoracolumbar spine.[200]
[200]Ex P1, p130
54 In his report dated 23 November 2018, Mr Miller noted that the plaintiff was then working fifteen hours per week as the general manager in his wife’s business.[201] As to the plaintiff’s work capacity, Mr Miller thought that as a result of his spinal injury, the plaintiff would have some difficulty with work which involves large amounts of repetitive bending, repetitive lifting or lifting of weights of more than 5 kilograms, and will have a requirement to shift his posture on a regular basis.[202] In the discussion of the plaintiff’s symptoms, Mr Miller noted that the discomfort in the plaintiff’s shoulders, particularly the right shoulder and further down the arms, radiated from his neck ache, discomfort and pain. Mr Miller said that the plaintiff reported that neck pain is the dominant feature of this constellation of symptoms. He said that the plaintiff reported that his neck and back pain were approximately equal at that time.[203]
[201]Ex P1, p132
[202]Ex P1, p138
[203]Ex P1, p134
55 The plaintiff was assessed for medico-legal purposes by Dr John Coleman, gastroenterologist and hepatologist.
56 In a report dated 6 August 2018, Dr Coleman noted that there was a significant alcohol history prior to the transport accident.[204]
[204]Ex P1, p148
57 In a report dated 7 August 2017, Dr Coleman noted that as a result of the transport accident, it appeared that the plaintiff’s alcohol intake had increased significantly.[205]
[205]Ex P1, p152
58 In his report dated 6 August 2018, Dr Coleman diagnosed the plaintiff as suffering from chronic recurrent pancreatitis related to alcohol consumption, as well as fatty liver, which diagnosis had been established with an abnormal ultrasound and deranged liver function tests. He said that at various times, the plaintiff had been given painkillers consisting of Endone and OxyContin for the purpose of controlling the chronic pain related to this condition.[206]
[206]Ex P1, p149
59 The plaintiff was treated by Dr Christine Ellisdon, clinical psychologist, between October 2018 and October 2019. Dr Ellisdon diagnosed the plaintiff’s current presentation as being consistent with the diagnostic criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Alcohol Use Disorder, moderate, in partial remission. She said that based on psychological factors alone, including the plaintiff’s issues with pain, depressive and anxiety symptomatology and patterns of alcohol use, his capacity for work is somewhat limited. She was of the view the plaintiff would currently be able to cope with similar hours to that which he had been working at Spirit Station Pier and that the plaintiff would be likely to have a similar capacity for work into the future.[207]
[207]Ex P1, p52
60 The plaintiff was assessed for medico-legal purposes by Dr David Weissman, consultant psychiatrist, on 6 October 2015 and again on 8 March 2017. In his most recent report dated 8 March 2017, Dr Weissman diagnosed the plaintiff as presenting with mild post-traumatic stress and anxiety symptoms and traumatisation features directly due to the transport accident itself. He thought that the plaintiff was suffering from a mild mixed reactive depressive anxiety syndrome consequential to his physical pain and injuries in the subject transport accident. Taking into account the plaintiff’s pre-existing psychiatric presentation, Dr Weissman thought that the diagnosis represented a mild aggravation of at least a mild to moderate pre-existing Chronic Adjustment Disorder condition. He specifically considered, but ruled out, a diagnosis of Chronic Pain Disorder and Somatic Symptom Disorder.[208]
[208]Ex P1, p167
61 The plaintiff was seen by Dr Nathan Serry, consultant psychiatrist, for medico-legal purposes on 31 May 2018 and again on 3 December 2019. Dr Serry provided three reports in the Plaintiff’s Court Book. In a report dated 3 December 2019, Dr Serry diagnosed the plaintiff as suffering from:
(a)moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation consistent with a Post-Traumatic Stress Disorder. Dr Serry suspected that at times, the severity of the plaintiff’s mood disturbance had been consistent with a Major Depression diagnosis; and
(b)alcohol abuse/dependence (currently in abeyance).[209]
[209]Ex P1, p100
62 Dr Serry acknowledged the plaintiff’s past history of probable pre-existing stress, anxiety, depression and alcohol abuse, in the context of financial difficulties coinciding with the GFC. He noted that the plaintiff otherwise had a reasonably sound premorbid adjustment “in a capable and in many respects previous high-functioning individual”.[210]
[210]Ex P1, p99
63 Dr Serry thought that the plaintiff’s current presentation was as a result of the plaintiff remaining physically symptomatic following a transport accident six years previously, and the plaintiff not having returned to his premorbid level of functioning. He said that the plaintiff “described a marked struggle in the aftermath of the accident and there appears to have been the development of suboptimal coping strategies, particularly in terms of [the plaintiff’s] use of alcohol”.He noted that there had been some improvement, with the plaintiff being abstinent of alcohol in recent months. He thought that from a psychiatric point of view, the plaintiff continued to struggle with continued levels of depression, moderately-high levels of anxiety, considerable frustration and with residual traumatisation symptomatology. He said that “Since the subject accident, [the plaintiff] has continued to struggle having never returned to his life as it was”.[211]
[211]Ex P1, pp99-100
The Defendant’s medical reports
64 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr Brendan Hayman, psychiatrist, on 12 February 2015. Dr Hayman thought that as a result of the injuries sustained in the transport accident, the plaintiff had developed a Chronic Adjustment Disorder with Depressed and Anxious Mood and features of traumatisation and also an exacerbation of a pre-existing Alcohol Abuse and Dependence Disorder. He thought the alcohol dependence had at that time resolved. He said that there was still some likely alcohol abuse. He thought that the symptoms of the Chronic Adjustment Disorder with Depressed and Anxious Mood were mild in nature.[212]
[212]Ex D1, p12
65 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr David Elder, occupational physician, on 17 February 2015, and again on 11 November 2015. In the most recent report dated 11 November 2015, Dr Elder noted that the plaintiff had returned to work and was slowly increasing his hours. The plaintiff’s history showed that when he worked close to full-time hours, he “paid for it”. At that time, he was working an average of about sixteen hours per week. The plaintiff described symptoms, including pain in his thoracic spine. He also described neck pain and numbness in his right arm, which Dr Elder recorded had started spontaneously in July 2015, with no history of the transport accident associated. On this basis, and noting that it was nearly two years after the original transport accident, Dr Elder could see no obvious link between the transport accident and the injury. Dr Elder noted the fact that the plaintiff was undergoing alcohol detoxification and had suffered from acute pancreatitis. He commented that the plaintiff would need to be assessed in order to delineate what, if any, aspect of his alcohol abuse was due to the consequences of the transport accident. Dr Elder thought that the plaintiff had a capacity to work three days per week.[213]
[213]Ex D1, pp25-27
66 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Associate Professor Michael McDonough, physician in addiction medicine and clinical toxicology. In a report dated 10 January 2017, Associate Professor McDonough noted the history given to him that as a consequence of the transport accident, the plaintiff had sustained a chronic pain condition which had caused an exacerbation in his former drinking, to the point that he had developed alcohol dependence. He said that the plaintiff also reported anxiety and depression after the accident, that he was then taking antidepressants and still reported some moderate symptoms as a result of the injury sustained in the accident. He noted that the plaintiff appeared to be well, reported a good level of functioning, including “that he had returned to work (‘running the business’), that he had a good family life, (being married and having three children)”.[214]
[214]Ex D1, p52
67 Associate Professor McDonough’s physical examination found no sign of current alcohol-related impairment, nor signs of injecting drug use, nor clinically-significant mental or physical impairment.[215] Associate Professor McDonough thought that on the available evidence:
“… it is most likely [the plaintiff] had an established Alcohol Dependence Syndrome prior to his transport accident in 2013, and while it is plausible that some post-accident-related pain, anxiety and depression, may have temporarily exacerbated his alcohol consumption pattern and potentially, his level of physiological dependence, such an event would be most unlikely to be responsible for ongoing maintenance of Alcohol Dependence Syndrome. Further, Alcohol Dependence Syndrome is a contingent condition known to have a multifactorial aetiology and therefore, is not a condition that arises from a single event such as a traffic accident.”[216]
[215]Ex D1, p52
[216]Ex D1, p52
68 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Professor Stephen Davis, consultant neurologist, in around December 2017. Professor Davis reported that the plaintiff gave a history of constant thoracic pain ever since the transport accident, worse on the right side than the left, and tending to worsen during the day. The plaintiff also reported that neck pain came on “a year or so after the accident and was associated with right sided headaches”.[217]
[217]Ex D1, p62
69 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr Gregor Schutz, consultant psychiatrist, on 23 December 2019. In a report dated 28 December 2019, Dr Schutz noted that prior to the Spirit Station Pier business closing down, the plaintiff reported that he had been working twenty hours per week.[218] Dr Schutz noted that the plaintiff was considering registering a company as a designer, but had not got past the initial stage. Dr Schutz noted that the plaintiff may have been affected by his confidence and concentration in this endeavour.[219]
[218]Ex D1, p85
[219]Ex D1, p85
70 In Dr Schutz’ opinion, the plaintiff had a pre-existing Adjustment Disorder which had been diagnosed in 2012. He said that the plaintiff’s Adjustment Disorder was not then in remission and would be likely to continue to fluctuate with stressors. He noted that the plaintiff had some mood symptoms, including loss of interest, negative ruminations, tearfulness and irritability.[220] He said that there was also clear evidence of alcohol dependence in the plaintiff, but noted that there was substantial evidence that this preceded the transport accident. He noted that the plaintiff had reported a relapsing and remitting pattern of alcohol use. He felt that there was insufficient evidence of an ongoing contribution from the transport accident.[221] He thought it was reasonable to conclude that there was a minor contribution from the transport accident to the depressive component of the plaintiff’s pre-existing Adjustment Disorder emanating from his experience of pain. He thought that there was insufficient evidence of a psychiatric pain disorder.[222]
[220]Ex D1, p91
[221]Ex D1, p91
[222]Ex D1, pp91-92
71 The plaintiff was examined for medico-legal purposes by Mr Gary Speck, orthopaedic surgeon, on 11 March 2020. In a report dated 20 April 2020, Mr Speck noted that since the transport accident, the plaintiff’s work hours had been restricted to about twenty hours per week and his role was more supervisory, ensuring that the interiors of the Spirit Station Pier were presented well. The plaintiff said that his wife did the quoting and managing the books and others did the physical work. Mr Speck noted that the plaintiff told him that he was “currently working on a freelance basis as a stylist”.[223]
[223]Ex D1, pp99-100
72 On physical examination, Mr Speck noted that the plaintiff was cooperative. He noted that movements of the plaintiff’s thoracolumbar spine were “90° of flexion, 30° of extension, lateral flexion 30° to each side and rotation 45° to each side with some pulling in the right scapular region on rotation to the right”. Despite this, Mr Speck concluded that the plaintiff had suffered a soft-tissue injury in the thoracic spine which was resolved. He did not provide any reasoning for this conclusion.[224] He said that the plaintiff’s complaints of neck symptoms were consistent with degenerative change within his neck. He said that the symptoms were, in his opinion, not related to the transport accident as they “arose nearly two years after the transport accident”. Mr Speck opined that the disability from the neck condition would be “mild”. He felt that the plaintiff’s current behaviour was “indicative of the somatic symptom disorder rather than significant ongoing neck disability”.[225]
[224]Ex D1, p110
[225]Ex D1, p111
The issues
The Plaintiff’s credit
73 Extensive attempts were made to discredit the plaintiff during cross-examination. Much of the cross-examination focused on an examination of the plaintiff’s financial dealings, particularly in relation to his bankruptcy, subsequent bank transactions and any possible alternative source of income. The plaintiff was also cross-examined extensively on his pre-existing and co-existing health conditions, together with other injuries which the defendant asserted were unrelated to the transport accident.
74 For instance, it was suggested that the plaintiff had misled his creditors in his bankruptcy, by failing to acknowledge that he was involved in a hospitality business, being Spirit Station Pier, at the time that he completed the Bankruptcy Statement of Affairs. Extensive cross-examination was undertaken in relation to these matters. The plaintiff was also extensively cross-examined in relation to transactions recorded in numerous bank accounts, based on the bank statements that were produced.
75 In relation to each of these matters, the plaintiff provided satisfactory explanations. A close examination of the detail in the Bankruptcy Statement of Affairs demonstrated that the information provided in that document was accurate, with the possible exception of omitting to list a particular painting which was acknowledged to be valuable, in the Statement of Assets. In relation to various large transactions contained within his bank statements, the plaintiff explained that he was buying and selling shares for his children, trying to make them some money. He also explained that his wife’s father lends the family money when they need it. The evidence given by the plaintiff was cogent and credible. None of this evidence was contradicted.
76 The plaintiff was challenged in respect of the sale of a table to an associate. It was suggested that the invoice evidencing the sale was false, because it purported to be an invoice from his wife’s company to the purchaser, when in fact the owner of the table was the plaintiff himself. It was also pointed out that the purchase price on the invoice was less than that which he had sworn during cross examination, was the sum that he had received for the table. The plaintiff explained that the invoice was made in the name of his wife’s company because the purchaser wanted a tax invoice with an ABN as it was a business purchase. His explanation for the discrepancy in the sum paid for the table was to the effect that his associate had decided to pay in excess of the asking price, because he knew of the plaintiff’s circumstances. No contrary evidence was put before the Court.
77 As to the physical symptoms from which the plaintiff now suffers and the consequences thereof, the plaintiff consistently described the injuries he suffered in the transport accident as relating to his back and neck. He maintained that his knee still bothered him, but agreed that this injury, which was, in any case, pre-existing, was largely resolved. He was candid about which activities were affected by the residual injury to his knee. The surveillance footage relied upon by the defendant did not depict the plaintiff undertaking any activity that was inconsistent with what he had previously said he was able to do. The plaintiff readily admitted that he had been on numerous overseas holidays. The evidence did not suggest that during those trips, the plaintiff engaged in any activities which he had said he could not do.
78 The plaintiff maintained that his problems with alcohol and his psychological symptoms had worsened following the transport accident. He said that his increased alcohol consumption had led to numerous hospitalisations for pancreatitis. While I accept that at times, the plaintiff tried to play down the extent of his pre-existing mental health and alcohol problems, when pressed, his answers were truthful and accorded with what appeared in his medical records and with what he had told various treating and medico-legal practitioners.
79 The plaintiff was pressed in relation to the association of the neck injury with the transport accident, it being specifically put to him that the neck injury had only emerged about two years following the transport accident. The plaintiff denied this assertion, maintaining that his neck had been injured in the transport accident.
80 A close examination of the medical records demonstrated that the plaintiff had complained about neck pain on his Claim for Compensation which was dated 24 October 2013. Similarly, as noted by Dr Monagle, the plaintiff also reported neck pain to at least one medical practitioner shortly after the transport accident. Furthermore, it became clear through an examination of the medical records and reports that the weight of the evidence from the medical experts is that the shoulder pain and headaches from which the plaintiff suffers, is pain that is referred from his neck injury. Given this, I am satisfied, first, that the plaintiff injured his neck in the transport accident and, second, that his shoulder pain and headaches are also consequences of the transport accident.
81 The plaintiff was challenged extensively in relation to his ability to work since the transport accident and his attempts to find work since the closure of Spirit Station Pier. In response to the questioning about these matters, the plaintiff was irritable, impatient and at times aggressive, but ultimately gave consistent answers to each enquiry made of him.
82 It emerged under cross-examination that following the transport accident, the plaintiff was off work for some months, but then returned to the business. He gradually increased his work hours to about 20 hours per week at the business, on much lighter duties than before the transport accident, in a more hands off role – described variously as “consultant” and “manager”. All of this evidence as it emerged over three days of extensive cross-examination, accorded almost exactly with what the plaintiff had set out in his two affidavits and had told various treating doctors and medico-legal experts. Similarly, he was candid about his attempts to find work since the closure of Spirit Station Pier. He denied ever having performed any work for A1 Quality Tiles but acknowledged that he had engaged with that company for the purpose of trying to sell some product, which ultimately, did not occur. He provided a reasonable explanation for seeking a doctor’s certificate – not to be excused from work, but rather, to be excused from community service that he was then performing under a court order. The fact that the plaintiff mentioned to the doctor at the time that he was then working for a tiling company, did not detract from my assessment of the veracity of the plaintiff’s explanation in relation to this matter. As the evidence emerged, it became clear that the plaintiff had made numerous attempts to get back into some kind of interior or design-related work, but that his efforts so far, had borne no fruit. I accept his explanation in relation to these matters.
83 As to the financial matters which were put to the plaintiff during cross-examination, I formed the view that with little exception, the plaintiff had been open and honest about his financial dealings and that any discrepancy in the documentation in no way impacted upon his credibility for the purposes of assessing the consequences of the injuries which he suffered in the transport accident.
84 Having had the benefit of observing the plaintiff while he was giving evidence to the Court over a number of days, I formed the view that he was somewhat irritable, impatient and aggressive toward those who were challenging his account of events. He seemed to find the court process, in particular the repetitive questioning, irritating and tedious. At times, he gave the distinct impression that he did not wish to continue with the process under cross-examination. Despite this, I formed the view that on the whole, the plaintiff was doing his best to give accurate responses to the numerous questions that were asked of him, including the detailed questioning in relation to his financial situation. In particular, I accept the evidence which the plaintiff gave in relation to the matters concerning his credit, which have been referred to above.
85 The credit of Mrs Kousis was also tested during cross-examination. There were aspects of her evidence which were unsatisfactory, in particular, her explanation for the correspondence surrounding her husband’s termination from employment following the transport accident. However, overall, Mrs Kousis gave evidence in relation to her husband’s health generally and as it was affected by the transport accident, which was consistent and cogent and which was supported to a large degree by matters set out in the medical records and reports.
86 I find that the plaintiff’s account of events and his injuries has remained fairly consistent throughout the period in which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court. The content of the medical records and the medico-legal reports from both sides, corroborate the plaintiff’s account of events, the injuries which he suffered in the transport accident, and their sequelae. The plaintiff’s account of the effects of his injuries is supported by the matters deposed to in his wife’s affidavit and the evidence which she gave under cross-examination.
87 After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the medical records and the evidence of his wife, I consider that he was a credible witness, in the sense of being a truthful person in relation to the effects of the transport accident.
Stoic Plaintiff
88 I also formed the view that the plaintiff is somewhat stoic in relation to his condition. An analysis of the evidence demonstrates that he has suffered constant pain in his spine since the transport accident in October 2013.
89 Despite this, I find he has made a concerted effort to try to remain active and to rehabilitate himself, including continuing to seek out physiotherapy and Pilates treatment and to engage in alternative therapies. In addition, the evidence indicates that the plaintiff returned to work in early 2014, and remained a participant in his family’s business, albeit in a more managerial capacity, until its closure in January 2019. This was notwithstanding the fact that at times, this work caused him to experience more pain. Since that time, I accept that the plaintiff has continued to make efforts to find other business opportunities, but without success at this time.
Compensable injury
90 The details of the occurrence of the injury are not in dispute.
91 Similarly, there is no dispute that the plaintiff is suffering from injuries to his spine as a result of the transport accident, that are organic in nature. As set out above, the weight of the evidence satisfies me that the plaintiff’s neck injury occurred as a result of the transport accident. The pain which the plaintiff experiences in his right shoulder, together with the headaches he experiences, are both consequences of that neck injury. I note that each opinion where the relevant medical expert has concluded that the plaintiff’s neck injury and related symptoms have no connection to the transport accident, is based upon incorrect instructions that the plaintiff made no complaint of neck pain for approximately two years following the transport accident. For that reason, I reject each of those opinions. Similarly, I reject the opinion of Mr Speck that the plaintiff suffered a soft tissue injury to his thoracic spine in the transport accident, and that this condition has not resolved. The weight of the medical evidence and medico-legal opinions in this matter satisfies me that the injury to the plaintiff’s thoracic spine is discogenic in nature, was caused by the transport accident and has not resolved.
92 On that basis, I am satisfied that the plaintiff suffers from the following injuries:
(a)aggravation of pre-existing and previously asymptomatic cervicothoracic spondylosis;
(b)aggravation of pre-existing and asymptomatic thoracolumbar spondylosis;
(c)aggravation of a pre-existing right knee problem which has settled to its pre-injury state;
(d)mild aggravation of a pre-existing Chronic Adjustment Disorder with Depression and Anxiety; and
(e)an exacerbation of a pre-existing Alcohol Abuse and Dependence Disorder.
Is the compensable injury “long term” for the purposes of the Act?
93 Having considered the relevant reports, in particular the reports from Dr Monagle,[226] Dr Middleton,[227] Dr Serry[228] and Mr Miller,[229] I find that the plaintiff is likely to suffer the consequences of the injuries to his spine for the foreseeable future. Given this, I find that these injuries are “long term” for the purposes of the Act.
[226]Ex P1, p31
[227]Ex P1, p88
[228]Ex P1, p100
[229]Ex P1, p131
Are the consequences of the Plaintiff’s injuries sustained in the transport accident “serious”?
94 Having regard to all of the relevant evidence, I find that as a result of the injuries to his spine alone, the plaintiff suffers from the following consequences:
(a)the experience of “near-constant” spinal pain, particularly affecting his upper back and neck regions. The back pain varies in intensity from mild/moderate to severe. The intensity of the pain tends to correlate with the level of his physical activity. The pain continues to be a very considerable inhibitor upon his daily activities;
(b)a feeling of soreness and stiffness in his neck most of the time. He experiences recurrent neckache which often radiates to the area between his shoulder blades. The neckache also frequently spreads up his neck and he can feel it in the form of tension headaches, which can come on multiple times per week. The neck pain also spreads to his right shoulder area;
(c)significantly restricted mobility. In particular, lifting, twisting and repetitive bending are difficult, and tend to provoke increased back pain. His backache also gets worse after prolonged sitting;
(d)the need for regular attendances on his general practitioner, a physiotherapist and an exercise physiologist;
(e)the need to take strong medication such as Endep, together with over-the-counter painkillers, on a daily basis;
(f)interrupted sleep, where he finds it difficult to get comfortable and tends to toss and turn in bed, often waking up in discomfort. He needs to take Temazepam at times to help him sleep;
(g)difficulty using a computer or sitting at a desk for more than fifteen minutes;
(h)disruption to his concentration due to his back and neck pain;
(i)an inability to play golf, which he used to enjoy prior to the transport accident;
(j)limitations on his physical endurance, which impact on his ability to interact as he would like with his children when they are participating in various sports;
(k)a feeling of constantly being “on guard” to protect his spine against undue strain, in his social, recreational and domestic activities;
(l)lowered mood and anxiety, irritability and difficulties with concentration caused by his experience of pain. He finds it hard to tolerate the fatiguing effect of coping with daily pain. He feels depressed with having to deal with his lifestyle and work changes that have beset him ever since he was hurt in the transport accident. His resilience is low, and on bad days, he feels lost and unmotivated. He wonders whether he will ever get back to how he was. His negativity impairs his motivation and enjoyment of life and it contributes to relapses in alcohol use. His irritability and his limitations on being able to engage in the intimate side of their relationship, have had an adverse impact upon his relationship with his wife;
(m)a significant impact on his ability to engage in employment in the future. He is not currently working. Having regard to his physical limitations, he is disinclined to contemplate re-entering the entertainment or hospitality field. While he has previous experience operating more traditional businesses such as decoration and interior design, even in that sort of work, there is a degree of physical activity, and he is concerned about how his spine would stand up to that type of employment.
95 In Haden Engineering Pty Ltd v McKinnon,[230] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[231] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment. The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[232] It has been observed by the Court of Appeal that once it is accepted that the appellant is a truthful witness and especially where the plaintiff has been found to be stoic, there is no reason to reject his ongoing descriptions of the pain suffered by him.[233]
[230](2010) 31 VR 1 (“Haden”)
[231]Haden (supra) at paragraph [9]
[232]Haden (supra) at paragraph [12]; see also Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph [44]
[233]ibid
96 The fact that after the accident, the plaintiff was prepared to keep working, is not a matter that tells against the granting of his application. To use the words of Nettle J A in Dwyer v Calco Timbers Pty Ltd (No 2):[234]
“… it would be unfortunate, and in … [our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[234][2008] VSCA 260
97 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, despite his irritable, impatient and aggressive personality, I have found that the plaintiff was both a witness of credit and also stoic in his presentation and attitude to managing his injuries.
98 It is undoubtedly the case that the plaintiff suffered from many comorbidities which affected his life prior to the transport accident. Notwithstanding this, the weight of the evidence satisfies me that prior to the transport accident, the plaintiff suffered from no pain in his spine and retained his ability to work full-time in a business which required hands on, physical work. Similarly, I am satisfied that as a consequence of the injuries to his spine alone, the plaintiff now suffers constant pain, for which he must take daily medication. His ability to work has been significantly impacted and will remain so for the rest of his working life. Many of his usual activities of daily living, and recreational activities, including golf, have been adversely affected by his pain and restriction in mobility. These were activities which gave him pleasure. His sleep is adversely affected. While he had suffered from periods of low mood in the past due to his financial difficulties, his lowered mood has clearly been exacerbated by his experience of pain following the transport accident. In turn, his relationship with his wife, though always somewhat rocky, has been adversely affected, as has his ability to manage his alcohol addiction.
99 As was stated by the Court of Appeal in Kelso v Tatiara Meat Co Pty Ltd:[235]
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence … .”
[235](Supra) at 199, per Dodds-Streeton JA
100 Given this, and taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injuries to his spine alone are “very considerable” and certainly more than “significant” or “marked” and therefore satisfy the relevant test for “serious injury” as set out in the Act.
Conclusion
101 For the reasons set out above, I am satisfied that as a consequence of the transport accident which occurred on 11 October 2013, the plaintiff has suffered a “serious injury” as that term is defined in the Act, to the function of his spine. The application is granted.
102 I will hear the parties in relation to the question of costs.
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