Lamaj v TAC
[2010] VCC 1303
•20 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. 299 of 2009
| ADRIATIK LAMAJ | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | Judge Coish |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 and 20 August 2010 |
| DATE OF JUDGMENT: | 20 August 2010 |
| CASE MAY BE CITED AS: | Lamaj v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1303 |
REASONS FOR JUDGMENT
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Catchwords:
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Gorton | Burt and Davies |
| For the Defendant | Mr P.Y. Rattray QC, with | Solicitor to the Transport |
| Ms N. Wolski | Accident Commission | |
| HIS HONOUR: |
1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s.93 of the Transport Accident Act 1986 in respect of physical injuries the plaintiff sustained in a transport accident on 19 January 2007. The plaintiff alleges that the physical injuries involving the neck and back are serious injuries within the meaning of paragraph (a) of the definition of serious injury under s.93(17).
2 It is alleged the relevant body function in which there has been impairment or loss is the neck or low back or spine. There is no dispute that the plaintiff suffered physical injuries in the transport accident on 19 January 2007. The issue in dispute is whether he has a serious injury as defined. The onus of proof is on the plaintiff.
3 I am familiar with and I have had regard to a long line of authorities dealing with serious injury applications. In Humphries v Poljak (1992) 2 VR 129 Crockett and Southwell JJ at p.140 stated that in respect of the definition of serious injury in paragraph (a):
To be "serious" the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious, the question to be asked is, can the injury, when judged in comparison with the other cases in the range of possible impairments or losses, be fairly described at least as "very considerable" and certainly more than "significant" or "quite marked".
4 In the application for special leave to the High Court in two of the cases reported under the name of Humphries v Poljak, Fleming v Hutchinson and Conroy v Veet (1992) 66 ALJR 211 the High Court stated that in hearing a serious injury application:
"Elements of fact, degree and value judgments are involved."
5 According to the High Court the ultimate question to be determined by me is one of degree, necessitating an evaluation which did not hinge on any legal principle, but rather depends upon my opinion, I being familiar with the range of conditions within which the instant condition occurs.
6 As the plaintiff has had an adverse psychiatric reaction to his physical injuries I have paid particular attention to the judgments of the Court of Appeal in Richards and Anor v Wylie (2000) 1 VR 78. I have, in accordance with the judgment of Winneke P, taken care -
"not to lose sight of the focus which the definition in paragraph (a) calls for, lest he falls into the erroneous reasoning process of allowing the consequences of a mental disturbance or disorder to govern or even intrude into the finding of 'impairment of loss of a body function.'" (Page 87).
As stated by Winneke P:
"Thus, the 'serious injury' defined by paragraph (a) of sub-s.(17) can I think have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function." (Pages 87 and 88).
7 Only the plaintiff gave evidence. Each party relied upon various medical reports and documents tendered in evidence.
8 The principal submission on behalf of the plaintiff was that he had suffered a chronic soft tissue neck injury which had resulted in serious long-term impairment or loss of body function of the neck. As there had also been an adverse psychiatric reaction to this physical injury in accordance with Richards and Anor v Wylie this could legitimately be taken into account in assessing the seriousness of the impairment or loss of body function, such impairment or loss of body function having resulted from physical injury, not from the consequences of any mental disturbance or disorder.
9 On behalf of the defendant, it was submitted that the plaintiff suffered no more than a minor soft tissue injury which, if it had produced any impairment, was of a mild nature and the effects of the injury had been overwhelmed by the plaintiff's adverse psychiatric reaction. It was submitted on behalf of the defendant that if there was any persisting soft tissue injury it was effectively subsumed or overwhelmed by an adverse psychiatric reaction.
10 The plaintiff is 32 years of age, having been born on 19 September 1978 in Kosovo. He is married and he has two young children. The plaintiff was an excellent boxer participating in 16 amateur bouts and training on a regular basis.
11 The plaintiff was employed by Corex Plastics at the time of his transport accident as a forklift driver and line assistant. He had been employed by Corex Plastics since 2002. He worked 12-hour shifts seven days per fortnight, plus overtime. His pre-injury earnings were substantial. They are set out in Exhibit 4, Summary of Taxation Returns. His work was physically demanding.
12 The plaintiff was involved in a transport accident on 19 January 2007. He was stationary in his motor vehicle when it was hit in the rear by a truck travelling at approximately 80 kilometres per hour. The plaintiff was dazed and shocked following his accident and he experienced neck, low back and shoulder pain.
13 The plaintiff saw his general practitioner, Dr Liang. He was referred for x-rays and had a CT scan. His GP referred him to Dr Gassin, a musculoskeletal physician. He underwent an MRI scan and was referred to a neurosurgeon, Mr Drnda.
14 Following the transport accident, the plaintiff was off work for approximately six months. He returned to work on reduced hours but as his employer was not able to continue to provide this work the plaintiff was forced to resume his normal full-time work. He took three months leave in late 2007 and travelled overseas. The plaintiff continued in his pre-injury employment from approximately mid-2008 but he took medication for pain relief to alleviate his symptoms and he received physiotherapy treatment.
15 In May 2008 the plaintiff started seeing Dr Corran, psychologist. He saw him approximately 11 times. In August 2008 the plaintiff commenced seeing Prof Eisenbruch, psychiatrist. He has continued to see Prof Eisenbruch on a regular basis.
16 In April 2009 the plaintiff accepted a redundancy package from his employer in the sum of approximately $25,000. The plaintiff was no longer able to cope with the physical duties involved in his employment. He ceased employment with Corex Plastics in April 2009.
17 The plaintiff and his wife purchased a florist shop in April 2009. The plaintiff worked in the shop, he drove to the market to buy flowers and did some deliveries. Whilst this was initially manageable, over time the plaintiff found these duties to be increasingly difficult for him as a result of neck and back pain.
18 The plaintiff was referred to Dr Clayton Thomas in September 2009 and he underwent a pain management program from 2 March 2010 to 8 April 2010. This did not assist him. The plaintiff was not able to cope with his work in the florist shop and so he decided to sell the business. The business was put on the market on 31 May 2010 and an agreement for sale was entered into on 3 July 2010. Settlement is due to take place at the end of this month.
19 In the plaintiff's affidavits he describes his residual symptoms in detail. These symptoms include constant pain and discomfort in the neck. His sleep is often interrupted. He experiences headaches. The plaintiff takes much medication. The plaintiff's emotional state has deteriorated in response to his chronic pain. He feels a failure as a husband and father. He has contemplated suicide. Since his transport accident, the plaintiff's weight has increased. The plaintiff was a fit and active man. He attended the gym regularly. He had a great interest in boxing and he managed a professional wrestler on an informal basis.
20 In cross-examination the plaintiff stated that he now drinks and smokes heavily. He has been unable to train other boxers as a result of his injuries. The plaintiff had hoped to open his own gym. The plaintiff was cross-examined extensively about the financial records relating to the florist shop. He explained that his wife handled the accounts and paperwork associated with the business. In cross-examination, the plaintiff described the long hours he worked in this business. He was at the market buying flowers at 6 am three days per week, in addition to working in the shop.
21 An affidavit from the plaintiff's wife dated 2 September 2009 was tendered on behalf of the plaintiff. Madiola Lamaj deposed to the happy and positive nature of her husband prior to the transport accident. He was fit and strong. He was involved in training young boxers and he managed a wrestler. Since the transport accident the plaintiff has, according to his wife, become a completely different person. His weight has increased. He rarely plays with his children. He is moody. His sleep is disturbed and he has become nervous and anxious.
22 An affidavit from Gentian Balashi, a friend of the plaintiff's, was tendered on behalf of the plaintiff. He is the wrestler the plaintiff used to manage on an informal basis and he has two flower shops. He trained with the plaintiff at the gym and he described the plaintiff's rigorous physical pursuits prior to the transport accident. He has observed a dramatic change for the worse in the plaintiff since his transport accident.
23 Sofan Chan provided an affidavit in which he described the plaintiff as a very good worker prior to his transport accident. He also described the many difficulties the plaintiff was experiencing upon his return to work following the transport accident.
24 As there was much common ground in the medical opinions obtained by each party I shall briefly summarise the treating doctors' opinions and the most recent medico-legal opinions. Dr Liang, general practitioner, in his report dated 19 May 2010 expressed the opinion that:
"I believe Mr Lamaj's chronic pain and stiffness in his neck, right shoulder and low back were results of the car accident. The pain is most likely muscular in nature, even though a stable fracture in his cervical spine was detected in MRI and CT scans and required no surgical treatment. Mr Lamaj's post-traumatic stress symptoms and depression were also related to the accident."
25 It was Dr Liang's opinion that the plaintiff's condition was stable and his condition had not improved despite the recent comprehensive rehabilitation program. Dr Liang was of the opinion that the plaintiff's chronic pain and depression are likely to be long-term, with intermittent flare-ups in severity.
26 In describing the impact of the injuries on the plaintiff's capacity to work, Dr Liang stated:
"It is extremely unlikely that Mr Lamaj will be able to return to his pre-injury working capacity. He is currently struggling with light work, such as running a florist shop, which requires minimal bending or lifting. It is unlikely he is able to
find meaningful employment which is suitable for him in the future."
27 At the time of compiling this report, the plaintiff was receiving medication in the form of Panadeine Forte, Lexapro and Somac and he was being reviewed regularly by his treating psychiatrist, Prof Eisenbruch.
28 Dr Gassin saw the plaintiff five times between 28 February 2007 and 23 May 2007. In his report dated 28 July 2007 he expressed the opinion that the plaintiff had suffered widespread soft tissue injuries to his neck and back as a result of the high impact rear-end motor vehicle accident. At the time Dr Gassin was treating the plaintiff, he was of the opinion that the plaintiff's condition had not stabilised. He expected improvement.
29 Mr Armin Drnda, neurosurgeon, in a report dated 12 July 2007 stated that he had only seen the plaintiff on one occasion on 5 June 2007. His impression was that the plaintiff sustained mainly a muscular injury to the neck and low back and he also had a small fracture between the odontoid process and articular pillar on the left resulting in a small chipped bone. Mr Drnda was of the opinion that the plaintiff's injuries were in keeping with the stated cause, namely the transport accident. He did not require surgical treatment. Mr Drnda was of the opinion that the plaintiff's prognosis was dubious since the plaintiff, despite treatment, had developed chronic myofascial pain which prevented him returning to work.
30 Dr Trevor Corran, psychologist, saw the plaintiff 11 times between May 2008 and April 2009. In his report dated 31 May 2008 he stated that:
"I have little reason to doubt that he is suffering relatively severe pain that is in itself causing him distress and adding to his sleep disturbance. However, of most significance from my perspective is that my clinical diagnosis of Mr Lamaj, based on the DSM-IV TR, is that Mr Lamaj's symptoms meet the criteria for a severe and now chronic post-traumatic stress disorder (PTSD) he also has a chronic pain disorder associated with both psychological factors and a general medical condition, and within the context of these disorders he has a severe level of clinical depression."
31 The plaintiff was seen for medico-legal purposes at the request of his solicitors by Dr Michael Epstein, psychiatrist, on 29 July 2008. In Dr Epstein's report dated 1 August 2008 he expressed the opinion that the plaintiff had developed a mild post-traumatic stress disorder following the transport accident. Dr Epstein was of the opinion that the plaintiff's psychiatric state did not interfere with his work capacity. It did, however, interfere with his relationship with his family because of his irritability.
32 Dr Clayton Thomas, in his report dated 20 May 2010, described the plaintiff's presentation on 8 September 2009 in these terms:
"He presents with organic and non-organic components to his presentation. The non-organic components are quite significant. The nature of his physical problems do not appear to be degenerative. The nature of his physical problems, therefore, will not be progressive."
33 Dr Clayton Thomas was of the opinion that the plaintiff had been left with some residual disability affecting his neck and lower back. He was of the opinion that the plaintiff had a partial incapacity related to the nature of his injuries.
34 Dr Richard Stark, neurologist, saw the plaintiff at the request of his solicitors. In his most recent report dated 10 May 2010 he expressed the opinion that:
"I believe that this man has suffered an injury to his cervical spine and, as discussed in previous reports, it would appear that this jolting injury includes an avulsion of a small fragment of bone from the C1 vertebra. There was also a jolting injury to the lower back."
Dr Stark regarded the plaintiff's injuries as stable. He believed that the injuries impacted upon the plaintiff's ability to work and on his pre-accident lifestyle and leisure activities.
35 Mr Peter Moran saw the plaintiff at the request of his solicitors. In his most recent report dated 8 June 2010 he accepted that as a result of the transport accident the plaintiff had been left with persistent symptoms of neck and back pain, together with right shoulder and arm pain. Mr Moran was of the opinion that:
"Chronic pain and his loss of physical competence have led, it would appear, to significant levels of stress and depression and for this he is receiving appropriate supportive treatment."
Mr Moran was of the opinion that the plaintiff's physical injuries had had a very severe impact upon his pre-accident lifestyle and upon the dynamics of his family life.
36 The plaintiff's treating psychiatrist, Prof Eisenbruch, in his report dated 10 June 2010 expressed the opinion that:
"He has a chronic pain syndrome which doubtless reflects the primary injuries that were sustained during the accident and, in addition, are amplified by his full hand of symptoms of PTSD in the wake of the car accident. This PTSD is severe and now chronic."
37 Prof Eisenbruch in his most recent report dated 12 August 2010 expressed this opinion:
"In almost four decades of clinical practice I have seen many patients in the depths of human misery. Sadly, I rank Mr Lamaj as among the worst rank of these. His life is a shell."
38 The plaintiff was examined at the request of the defendant by Prof Steven Davis and Mr Michael Dooley. Prof Davis in his report dated 11 January 2010 expressed the following opinions:
"(1) He had jolting-type injuries to the cervical spine in particular in this accident and presumably to a lesser degree in the lumbar spine; (2) He has evidence of a small avulsion fracture in the upper cervical spine, although there is some uncertainty as to whether this is definitely related to the accident, with the assumption of likely causality given no other definite history of cervical injury; (5) His major problem seems to be neck pain and there are significant psychological aspects with a chronic pain syndrome; (12) I'm uncertain as to the relevance of this very small presumed avulsion fracture. I do not think that it would be currently producing any symptoms of a specific nature."
39 Mr Michael Dooley in his report dated 8 April 2010 stated that he believed the plaintiff to have sustained a soft tissue injury to the cervical spine in the motor vehicle accident. He believed the injury involved musculoligamentous damage. He was of the opinion that Mr Lamaj would continue to note some intermittent neck pain and intermittent low back pain. He did not expect the plaintiff's injuries to cause him major functional difficulty. He did accept that the plaintiff would have difficulty carrying out regular heavy physical work and carrying out a lot of work at above shoulder level. He was of the opinion that the plaintiff was fit to continue in his current capacity in the florist shop. He accepted that the plaintiff would note difficulty with a lot of impact leisure pursuits. He believed the plaintiff's orthopaedic injuries to have stabilised.
40 There was no significant attack upon the plaintiff's credit in cross-examination. Rather, the defence focused upon a careful analysis of all the medical opinions considered in the light of the principles enunciated in Richards and Anor v Wylie.
41 I found the plaintiff to have been a straightforward witness of truth. He did not exaggerate or embellish his symptoms. I accept his evidence on the nature of his physical injuries, particularly his neck injury, and the course and effect of that neck injury upon him. I find that prior to the transport accident the plaintiff was a very fit, active, healthy young man engaged in physically demanding work for long hours and physically robust recreational activities. I find that in the transport accident the plaintiff experienced neck and back pain. I find that as a result of his persisting neck pain and discomfort he has been unable to continue in his employment at Corex Plastics. He has been unable to continue to work in the florist shop he purchased with his wife and he has been unable to engage in his past recreational activities of boxing, gymwork and training.
42 I accept that the plaintiff has had an adverse psychological or psychiatric reaction to his physical injuries.
43 It is clear from the weight of medical evidence that the plaintiff suffered a soft tissue neck injury in the transport accident with a small avulsion fracture in the cervical spine. In my opinion the weight of medical opinion is that there is a genuine organic basis to the plaintiff's complaints of persisting neck pain and discomfort; that is, a chronic soft tissue neck injury. I accept the opinions of Mr Stark, Mr Moran and Mr Dooley that the plaintiff suffered physical injury to the neck and that injury has impacted adversely upon the plaintiff's ability to work and his social, recreational and domestic activities.
44 Dr Clayton Thomas and Dr Davis found a significant non-organic component in the plaintiff's presentation. I am, however, satisfied that the plaintiff's impairment or loss of body function does result from organic injury, having regard to my assessment of the plaintiff's evidence and my acceptance of the opinions of Messrs Stark, Moran and Dooley.
45 The plaintiff has had a severe adverse psychiatric reaction to his neck injury. The nature of that psychiatric reaction is described in detail by Prof Eisenbruch. Prof Eisenbruch was of the opinion that the plaintiff suffered physical injuries which were severe in nature and extent. His chronic pain syndrome reflected the primary injury and, in addition, the symptoms were amplified by the symptoms of post-traumatic stress disorder in the wake of the transport accident. I accept this opinion.
46 I find that this is not a situation in which a mental disturbance or disorder is producing the impairment or loss of body function. Rather, the plaintiff has symptoms of pain and discomfort resulting from his physical neck injury, which symptoms have now produced what Prof Eisenbruch describes as a "chronic pain syndrome". In addition, the plaintiff's symptoms have been amplified by his post-traumatic stress disorder. I find that there has been and remains physical injury to the neck. There has been and remains a genuine physical basis for the plaintiff's symptoms.
47 To adopt the terminology used by Chernov JA in Richards and Anor v Wylie, I find that the relevant impairment or loss of body function has been brought about predominantly by the relevant physical injuries. In deciding if that impairment or loss of body function is serious or long-term I have taken into account not only the physical cause of the impairment, but also any mental or behavioural disturbance flowing from the physical injury.
48 In making this finding of fact, I have taken care to focus upon the task required of me in assessing this application under paragraph (a) of the definition of serious injury in accordance with the principles enunciated in Richards and Anor v Wylie. I am satisfied that the mental disturbance or disorder is a consequence of the impairment and is not itself the cause of long-term impairment of loss of body function of the neck.
49 Finally, having regard to my findings on the plaintiff's inability to return to his pre-injury employment and pre-injury recreational activities, I find that the consequences to the plaintiff of injury to the neck, both in respect of pecuniary disadvantage and/or pain and suffering could fairly be described as "very considerable" and are therefore serious and long-term. As the plaintiff has succeeded in establishing "serious injury" in respect of the neck injury, it is unnecessary for me to consider the claim in respect of the low back injury.
50 I grant leave to the plaintiff to bring proceedings for the recovery of damages pursuant to s.93 of the Transport Accident Act. I will hear the parties on the appropriate costs order.
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