Leaney v TAC

[2024] VCC 1564

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-22-03337

DAVID LEANEY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE TSIKARIS
WHERE HELD:	Ballarat
DATE OF HEARING:	3 July 2024
DATE OF JUDGMENT:	18 October 2024
CASE MAY BE CITED AS:	Leaney v TAC
MEDIUM NEUTRAL CITATION:	[2024] VCC 1564

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Damages – serious injury – injury to the neck and left shoulder – causation

Legislation Cited:      Transport Accident Act 1986 (Vic)

Cases Cited:              Rowe v TAC [2017] VSCA 377; Metro Trains Melbourne Pty Ltd v Keay [2023] VSCA 223; Humphries & Anor v Poljak [1992] 2 VR 129; Barlow v Hollis (2000) 30 MVR 441; Grech v Orica Australia Pty Ltd [2006] VSCA 172; RJGilbertsons Pty Ltd v Skorsis [2000] VSCA 51; Alcoa of Australia Ltd v McKenna [2003] 8 VR 452; Dressing v Porter [2006] VSCA 215

Judgment:                  Application dismissed. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison KC with Mr A Dimsey	Stringer Clark Lawyers
For the Defendant	Mr P Jens with Ms V Katotas	Transport Accident Commission

HER HONOUR:

Introduction

1The plaintiff seeks leave pursuant to s93(17) of the Transport Accident Act 1986 (“the Act”), to commence proceedings for common law damages in relation to injuries he allegedly sustained in a transport accident which occurred on 18 July 2016. The body functions relied upon are the neck and left shoulder under paragraph (a) of the relevant definition of “serious injury.” 

2In order to succeed, the plaintiff must satisfy the Court that he has sustained a serious long-term impairment or loss of a body function of the neck and left shoulder within the meaning of sub-paragraph (a) of s93(17) of the Act.

3In determining this application, the Court must be satisfied, on the balance of probabilities, that the injury suffered by the plaintiff was as a result of the transport accident and that the injury is a “serious injury” within the definition of “serious injury” contained in s93(17) of the Act. I must make the assessment of serious injury at the time the application is heard. The term “serious injury” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[1] 

[1]        Humphries & Anor v Poljak [1992] 2 VR 129 at 170 and accepted by the Court of Appeal in Barlow v

Hollis (2000) 30 MVR 441, in particular, Chernov JA at paragraph [29]

4The plaintiff relied upon three affidavits affirmed in respect of this application namely on 9 November 2021, 29 June 2023 and on 7 June 2024 as well as an affidavit affirmed on 9 August 2023 in support of a serious injury application made pursuant to the Workplace Injury Rehabilitation Act 2013.

5In addition, both parties relied on medical reports and other material which were tendered in evidence. At the hearing of the application the plaintiff gave evidence and was cross-examined. I have read all the tendered material, and I will refer to the relevant evidence to the extent necessary in these reasons.

Issues

6The issue in dispute is whether the plaintiff’s alleged injuries were caused by the transport accident alone. It is insufficient for the plaintiff to establish that the accident was “a cause”[2] of the alleged injuries. The plaintiff was granted a serious injury certificate in respect of injuries to the left shoulder and neck sustained in the course of his employment as a bus driver with CDC Ballarat Pty Ltd. The defendant submitted that in circumstances where the plaintiff had sustained a serious injury to the very same body parts in the course of his employment, the Court could not be satisfied on the evidence that the plaintiff’s claimed injuries in this application, were caused by the transport accident.

[2]        Rowe v Transport Accident Commission [2017] VSCA 377

Background

7The plaintiff was born in April 1967 and is 57-year-old. He is married with two adult children.

8After completing secondary school, he worked as an insurance underwriter for about four years and then worked in claims for about 10 years. From about 1988 to 2014 he worked as an insurance assessor. In May 2015 he started working full-time as a bus driver for CDC Ballarat.[3]

[3]Affidavit of David William Leaney affirmed on 9 November 2021, Amended Plaintiff’s Court Book (‘PCB’) 19

9On 18 July 2016 the plaintiff was involved in a transport accident which occurred during the course of his employment. He was driving a CDC Ballarat bus along Albert Street, Sebastopol when a car exited a carpark without giving way to his bus, resulting in a collision. The front left part of the bus collided with the right front quarter panel of the car.[4]

[4]        PCB 20

The plaintiff’s evidence

10The plaintiff deposed that he felt a jolt through the left side of his neck and arm as a result of the collision. He said he first noticed symptoms of neck and left shoulder pain immediately after the accident and they became more troubling in the weeks following.[5] In around August 2016, he consulted his general practitioner Dr Ajay Reddy who referred him for an ultrasound. The plaintiff underwent an epidural injection in December 2016. He said his pain increased when operating the security doors retrofitted in the buses as they required him to use his left arm.[6]

[5]Affidavit of David William Leaney sworn on 9 August 2023, PCB 29

[6]        Ibid

11He was investigated further with an MRI of the cervical spine and left brachial plexus. Due to the persistence of symptoms, he was referred to a musculoskeletal physician, Dr Paul Verrills, for opinion. Dr Verrills treated him with a C7/T1 intralaminar epidural injection in December 2016. The plaintiff also underwent physiotherapy around that time which he said did not help him much.

12The plaintiff was then referred for a left shoulder X-ray and ultrasound which revealed bursitis and so he underwent an ultrasound guided steroid injection. He underwent a repeat of the epidural injection in March 2017 which only led to partial relief of symptoms.

13The plaintiff was then referred to neurosurgeon, Mr Tom Morris, for further opinion. Mr Morris advised surgical decompression of the impinged C7 nerve root and a fusion, which was carried out on 28 April 2017.[7]

[7]        Ibid

14The plaintiff was referred to Mr Richard Dallalana, shoulder and elbow surgeon, by Mr Morris, as the plaintiff’s shoulder symptoms persisted. Mr Dallalana performed arthroscopic left subacromial decompression surgery on 30 January 2018.

15In November 2023 the plaintiff underwent a radiofrequency neurotomy due to persisting left arm and neck symptoms as recommended by Dr Verrills.

16The plaintiff continued at work until his spinal surgery and then he returned to work approximately 2 months after the surgery on light duties. By the following year he had gradually increased his hours and had returned to full-time bus driving work. After working full-time for a few months, he resigned from CDC Ballarat in May 2019 due to ongoing neck and left shoulder pain. In June 2019 he started working an office-based job for Proclaim Management Solutions as a full-time insurance account manager.[8]

[8]        PCB 21

17The plaintiff said that as a result of compensating for his left shoulder by using his right arm more, this caused right shoulder pain. The right shoulder was investigated with an ultrasound, and he underwent four injections to his right shoulder.[9]

[9]        Ibid

Consequences

18The plaintiff said his worst pain is in the neck where it constantly throbs, with stabbing pain going down his left shoulder as far as the elbow.[10] In his affidavit affirmed on 7 June 2024, he deposed that he still experiences pain in the neck and left shoulder, but it had calmed somewhat since he underwent the radiofrequency neurotomy on 1 November 2023.[11]

[10]        Further Affidavit of David William Leaney sworn on 29 June 2023, PCB 25

[11]        Third Affidavit of David William Leaney affirmed on 7 June 2024, PCB 32

19He was prescribed Norflex which he took a few times per week, and he also used Nurofen as an alternative.[12] He used a handheld massager on his neck and left shoulder. He had been prescribed with Nopiclone to assist with his difficulties in sleeping and used this a few times per week when the pain was worse.[13]

[12]        Ibid

[13]        Ibid

20The plaintiff said that he rode his bike most weekends for around 120km with friends, but he had stopped riding as the posture and jolting caused him pain.[14] He deposed that because he was less active due to his injuries, he gained around 20kg.[15]

[14]        Ibid 32

[15]        Ibid 26

21His symptoms disrupted  his sleep, he was  unable to stand for a long time without feeling the need to sit down, and he avoided reaching or doing repetitive type movements with his left arm and shoulder.[16] He had to find ways to avoid using his left arm and shoulder when showering, dressing, and driving due to the struggles he faced from the pain.[17] When gardening he usually experienced an increase in symptoms afterwards.[18]

[16]        PCB 22

[17]        Ibid 26

[18]        Ibid 33

22He had some difficulty with memory and concentration but had gotten better due to now experiencing less pain than previously. He had adjusted to his limitations as best as he could but deposed that he had a low level of enjoyment of life and did not want to be doing his current job.[19]

[19]        Ibid 23

Cross-examination

23In cross-examination the plaintiff accepted that he had been granted leave to issue proceedings for injuries he had sustained in the course of his employment as a result of having to manoeuvre security doors that were installed in the buses that he drove. 

24The plaintiff agreed that he had made two serious injury applications, one against CDC Ballarat and the other against the Transport Accident Commission for the same condition to his neck and left shoulder.

25He described how the buses he drove were modified by his employer with the installation of security doors over time. They were heavy metal doors with Perspex glass and were operated with a magnetic lock. The door was positioned on the left side of the driver for protection and was located to the driver’s left shoulder side and head towards the front and towards the leg of the driver. It created a Perspex barrier between the passengers and the driver. Every time he commenced a shift and completed the shift, or if someone needed assistance to get on or off the bus, he would have to access the body of the bus by going through the security door. Many buses in the fleet had doors that required them to be forced open because they did not operate correctly as they required some force and manhandling. He had reported this fault to his employer at least five times.[20]

[20]        Transcript (‘T’) 21 Line (‘L’) 19-25

26In respect of the WorkCover claim for compensation he submitted with CDC Ballarat, he identified his injury and condition as bursitis to the left shoulder which occurred as a result of a “repetitive type injury over period of time”[21]. He agreed that at the time of completing the form, he understood that he was experiencing pain to the left shoulder as a result of handling the security doors. His evidence was that it was an “assumption”[22] he had made because of how he felt at the time. He also agreed that he filled out an injury form with CDC Ballarat prior to completing the WorkCover claim for compensation. In that injury form dated 11 August 2016, he noted the “particulars of injury” as “left shoulder is becoming sore” affecting the muscle and he described the “particulars of incident” as “gradual over time”. [23]

[21]        Defendant’s Court Book (‘DCB’) 34

[22]        T29

[23]        DCB 33

27He said that he was reluctant to submit a WorkCover claim for compensation, but he was encouraged by Dr Reddy to make a claim.[24]

[24]        T26

28In respect of the history obtained by Dr Verrills that his injury to the lower cervical spine was precipitated by work, he said that it was based on his assumption at the time. He agreed that he gave a history to Dr Verrills of injury occurring as a result of manoeuvring the security doors with his left arm. He said that by 16 December 2016, he still assumed his pain and symptoms were related to his general conditions of work.[25]

[25]        T47 L9-11

29He agreed he told his treating general practitioner that his left shoulder and neck pain were from moving the bus doors.[26] He accepted that he related an accurate account to Dr Michael Lucas who examined him in relation to his WorkCover claim in July 2018[27] and that he did not give Associate Professor Buzzard a history of any accident.[28]

[26]        T45 L15-18

[27]        T34

[28]        T36

30He conceded that his work injury still played a role in his left shoulder and neck conditions[29] and that his injury occurred during his employment and because of his employment.[30]

[29]        Ibid

[30]        T37

31Although he initially associated the neck and shoulder injury to the moving of the bus doors, he later associated it to the transport accident because his “pain deteriorated rapidly” between the accident and the end of 2016.[31] In cross-examination he was unable to pin point the time when he changed his opinion as to the cause of his condition but in re-examination he said it was in April 2017 when he consulted Mr Morris.[32]

[31]        T46 L5-12

[32]        T52

32He agreed that the police and the ambulance were not called following the transport accident, he completed the CDC incident form when he returned to the bus depot and that no injuries were reported.[33] He reported the accident to police on 2 October 2017 at the request of his solicitors and that he gave police the description of the accident.[34]

[33]        T40-41

[34]        T48

Medical evidence

Mr Richard Dallalana, shoulder and elbow surgeon

33Mr Dallalana first saw the plaintiff on referral from his treating neurosurgeon approximately 18 months after the injury and stated that he was unfamiliar with the history of the injury and the plaintiff’s background. At the time of his review the plaintiff was recovering from neck surgery and complaining of persistent discomfort around the neck region which extended over the shoulder and into the arm. His physical assessment at the time revealed some limitation of movement of the shoulder but no major impairment and tenderness felt at certain trigger points, such as the acromion clavicular joint. Injections and further rest were recommended following recovery from the neck surgery.

34In his report dated 1 April 2022, he stated that the plaintiff underwent surgery on the left shoulder on 30 January 2018. His findings were of chondral damage to the humeral head, impingement and bursitis and AC joint arthritis. The surgical procedure involved smoothing the rough edges of the chondral damage, formal resection of the AC joint and bursitis removal and decompression.[35] Upon review in February 2018, Mr Dallalana noted that the plaintiff was quite happy with his shoulder performance and excellent movement was observed.

[35]        PCB 34

35Mr Dallalana deferred to Mr Morris’ opinion in relation to the cervical spine.[36] It was unclear to Mr Dallalana whether the injuries to the shoulder were a result of the transport accident in 2016 or not. The chondral injury could have been sustained through a forceful incident such as a fall or a motor vehicle accident, but he could not relate it to the 2016 transport accident due to the absence of history. The AC joint arthritis, the bursitis and impingement were more in keeping with longer standing slightly degenerative injuries rather than the result of a single traumatic incident.

[36]        Ibid 35

36At the time of assessment, Mr Dallalana was of the opinion that there was no impairment related to the shoulder and that the plaintiff had regained the capacity to perform either his pre-injury duties or suitable alternative duties. However, if the plaintiff developed arthritis of the shoulder due to the humeral chondral defect, then he would need to retrain into light work roles and his prognosis would be poor.[37]

[37]        Ibid

Dr Ajay Reddy, general practitioner

37Dr Reddy assessed the plaintiff on 12 August 2016 with a 4-week history of left shoulder pain. His symptoms were initially diagnosed as muscular and when symptoms worsened, despite treatment, the plaintiff was investigated with an ultrasound of the left shoulder which reported bursitis and impingement as possible causes of the symptoms.

38Due to the persistence of symptoms the plaintiff was referred to Dr Verrills for an opinion. Dr Verrills treated him with a C7/T1 intralaminar epidural injection in December 2016 which produced significant improvement of some symptoms for 3-4 weeks but then the symptoms recurred. He was then referred for a left shoulder X-ray and ultrasound which again revealed bursitis and so he progressed to an ultrasound guided steroid injection which led to some improvement. Dr Verrills advised a repeat of the epidural injection which was carried out in March 2017. This time the epidural injection only led to a partial relief of some symptoms, so the plaintiff was then referred to a neurosurgeon, Mr Morris, for further opinion.[38]

[38]        PCB 40

39Mr Morris advised of surgical decompression of the impinged C7 nerve root which was carried out in April of 2017. Again, this procedure led to only partial relief of some symptoms and so Mr Morris then requested an MRI of the left shoulder which revealed minor bursitis.

40The plaintiff’s symptoms gradually improved over the next few months but never fully resolved. Following the surgery he had some ongoing neck pain. The plaintiff was then reviewed by orthopaedic surgeon, Mr Richard Dallalana, who initially advised a steroid injection to the left shoulder acromioclavicular joint, but as pain persisted, he progressed to a left shoulder arthroscopy with chondroplasty, bursectomy and acromioclavicular joint resection which was done in January 2018. This procedure also produced only partial relief of symptoms.

41In Dr Reddy’s opinion the diagnosis of the plaintiff’s left shoulder problem is not clear cut and is likely to be multifactorial, including left shoulder bursitis and impingement, left acromioclavicular joint degeneration and left C7 nerve root impingement.

Dr Paul Verrills, interventional and musculoskeletal physician

42Dr Verrills obtained a history of “a clear-cut injury to his lower cervical spine precipitated by his work driving a bus and the various mechanisms, and in particular, closely the recently installed security doors with his left arm”.[39]

[39]        DCB 11

43This led to severe and excruciating neck and left arm radicular pain and the MRI shows a C6/7 paracentral disc extrusion. Dr Verrills recommended an urgent C7/T1 interlaminar epidural.

The plaintiff’s medico-legal reports

Professor Paul D’Urso, consultant neurosurgeon

44Professor D’Urso obtained a history when he first examined the plaintiff on 15 December 2021 that he was performing his duties as a bus driver on 18 July 2016, when he was involved in a motor vehicle accident when a car ran in front of him and there was a T-bone type of collision, with the left front part of the bus hitting the car. The plaintiff recalled having a sensation of jolting neck pain into his left shoulder and arm. He was wearing a lap seatbelt at the time of the accident, and he continued to work. After several weeks, the plaintiff said he developed increasing neck and left shoulder pain and his symptoms worsened such that he ceased employment as a bus driver in September 2016. The plaintiff underwent a cervical discectomy and fusion procedure on 28 April 2017. He reports there was some slight improvement of his symptoms following the surgery.

45Professor D’Urso was of the opinion that “it would appear” that the plaintiff sustained a soft tissue injury to his cervical spine and shoulders as a result of a motor vehicle accident and “it would appear” that the MRI scan in October 2016 revealed a C6-7 disc prolapse with possible nerve root entrapment and facet joint degenerative change. He concluded that “it would appear a motor vehicle accident in which he was involved in precipitated the onset of symptoms and the soft tissue injury to the cervical spine which may have led to a prolapse of the C6-7 intervertebral disc causing some left C7 nerve root compression.[40]

[40]        PCB 53

46On examination on 10 February 2023, Professor D’Urso obtained a history of the plaintiff’s progress, conducted an examination and reviewed radiological investigations. He maintained his previously expressed opinion that “it would appear” that the plaintiff sustained a soft tissue injury to his cervical spine and shoulders as a result of the motor vehicle accident. Subsequently, that AC joint degenerative change and subacromial bursitis were identified on the imaging and that “it would appear” that an MRI scan in October 2016 revealed a C6-7 disc prolapse with possible nerve root entrapment and facet joint degenerative change.

47In a request for a supplementary opinion, Professor D’Urso was provided with a letter of instruction from the plaintiff’s solicitors which outlined the circumstances of the transport accident as follows:[41]

Mr Leaney was involved in a low impact "minor" motor vehicle accident on 18 July 2016 when the bus he was driving struck a car in front of him.

He instructs that he immediately experienced neck and left shoulder symptoms, but these were initially minor. He continued to work as a bus driver, which he instructs involved operating heavy retrofitted security doors using his left arm. He says this caused the pain and symptoms in his left shoulder and neck to become worse.

Mr Leaney first complained of left shoulder pain to his GP, Dr Ajay Reddy, on 12 August 2016. An ultrasound showed subacromial bursitis and he was treated with steroid injection into his left shoulder on 30 August 2016.

[41]        Ibid 57

On 1 November 2016, he complained to Dr Reddy of upper back, left neck, and left shoulder pain. He then saw Dr Verrills on 15 December 2016 regarding his neck symptoms and was initially treated with an epidural injection.

48Professor D’Urso was asked in light of the description and additional material, which included the plaintiff’s affidavits affirmed on 29 June 2023 and sworn on 9 August 2023, whether he maintained his opinion that the plaintiff sustained a soft tissue injury to his cervical spine and shoulders as a result of a motor vehicle accident. Professor D’Urso noted that when he initially consulted with the plaintiff on 13 December 2021, he took a medical history from him and the plaintiff stated that he was involved in a motor vehicle accident on 18 July 2016, and he developed a sensation and jolting neck pain which radiated into his left shoulder and arm as a result. Professor D’Urso noted that at the time of the accident, he continued to work and that following the motor vehicle accident in subsequent weeks he developed increasing neck pain and left shoulder pain. Professor D’Urso noted that the plaintiff swore in his affidavit on 9 August 2023 that he first noticed symptoms of the neck and left shoulder pain immediately after a minor bus accident on 18 July 2016, and that the symptoms were initially minor but became more and more troubling in the weeks that followed as he continued working as a bus driver. In light of the medical history taken from the plaintiff and the affidavit, Professor D’Urso maintained his opinion expressed in the previous reports dated 14 November 2021 and 10 February 2023, and otherwise saw no reason to alter his previously expressed opinions.[42] 

[42] PCB 57

Mr Stephen Doig, orthopaedic surgeon

49The plaintiff reported to Mr Doig that on or around 18 July 2016 he was a driver of a public transport association bus when he hit a car which pulled out on his left, from a car park, that did not give way. He had a lap-sash belt on, not an over the shoulder belt and he held on hard to the steering wheel having anticipated the accident. He was jerked backwards and forwards, pulled up eventually and got out to make sure the other driver was alright. At the time he did not feel too bad, and he did not think that he had done anything too serious. Consequently, he drove the bus back to the depot. Over the next few days, he experienced a slow onset of pain and discomfort primarily affecting his left shoulder and his cervical spine which slowly and steadily became worse. He reported it to his workplace and was advised to go and see his local doctor.[43]

[43]        PCB 65

50From a clinical point of view, Mr Doig diagnosed a left C6-7 disc prolapse which has been surgically treated with some ongoing cervical spine stiffness and the plaintiff suffered from a traumatic left subacromial bursitis which has been treated by a subacromial decompression with ongoing pain and stiffness.[44]

[44]        Ibid 67

51In a second examination his opinion was largely unchanged.

52In an addendum, Mr Doig commented that he read through local doctor notes and the report of Dr Verrills, as well as the opinion of Dr Menz. Mr Doig noted that in the letter of instruction it states that the plaintiff complained immediately of pain which was “not quite the history that he gave” to him as he had recorded  that “he said he was jerked backwards and forwards in the seat as a result of the collision, but then he developed over the next few days a slow onset of pain and discomfort affecting the left shoulder and the cervical spine”.[45] He also noted that Professor D'Urso’s assessment was similar to his.

[45]        Ibid 65

53In light of the further information and the additional materials, he considered that the cause of the plaintiff’s ongoing symptomatology was most likely due to the motor vehicle accident. There was a clear history that he did not have problems with his left shoulder or his cervical spine prior to the accident and he gave a history of being jerked backwards and forwards in the seat with a lap belt and not a lap/sash belt, and therefore although it is likely that he had significant age related degeneration, that age related degeneration has been rendered symptomatic by the accident itself. Mr Doig noted that Dr Menz had stated quite unequivocally that the plaintiff never had trouble with the shoulder or neck problems before and has since had ongoing problems which he attributes to that motor vehicle accident, and Mr Doig considered that this was quite consistent. As a consequence, he maintained his previously expressed opinion.

The defendant’s medico-legal reports

Associate Professor Anthony Buzzard, general surgeon

54The plaintiff told Associate Professor Buzzard that his problems commenced in about late July 2016. He developed a gradual onset of pain in the left shoulder. There was no specific accident involved. The plaintiff described his symptoms coming on whilst employed as a bus driver working full-time and that some of the buses he drove had power steering, although some did not. There was no other physical activity involved although he sometimes had to lower a ramp for wheelchairs which was physically exerting.

55Associate Professor Buzzard diagnosed a rotator cuff pathology in the left shoulder with some evidence of degenerative changes in the left acromioclavicular joint. He was also concerned of the possibility the plaintiff may have a nerve root problem in the cervical spine which required investigation with an MRI scan. In his opinion, given the nature of the work and in particular the lowering and raising of the ramp, it was more likely than not that the plaintiff’s problem was caused by work.[46]

[46]        DCB 8

Dr Michael Lucas, consultant occupational physician

56Dr Lucas was provided with a letter of instruction from Allianz Australia Workers' Compensation (Victoria) Limited dated 27 June 2018 which outlined that the plaintiff had suffered an injury to his right shoulder (sic), with a diagnosis of 'subdeltoid bursitis and impingement, C6/7’. He was provided with, among other things, the WorkCover Injury Claim Form dated 31 August 2016, the reports from Associate Professor Buzzard dated 19 October 2016 and Mr Dallalana dated 31 January 2018, the Operative Report of Dr Morris, dated 28 April 2017, the follow-up report of Dr Morris, dated 1 June 2017 and the communication to Dr Morris by Mr Dallalana dated 30 January 2018.

57The plaintiff advised that at the time of the onset of symptoms he had worked as a bus driver for around 15 months. During this time, modifications were done to the bus with the fitting of security doors and he had to reach behind him to close the security door.

58He recalled around July 2016 he was being troubled by left anterior shoulder discomfort which he associated with his door closing activities. He brought his concerns to his workplace’s attention and attended a general practitioner review and then a neurosurgeon for review. The plaintiff gave a past history of “a MVA two years prior to his indicated symptom concerns”, however indication of significant trauma at the time of the crash event was limited. On the basis of the provided history, Dr Lucas considered it reasonable that the symptoms had a significant work activity association namely an exacerbation/aggravation.[47]

[47]        DCB 15

59The possibility of the identified chondral loss being pre-existing/longstanding/non-work incident related was not excluded and may be considered as likely. The plaintiff’s prior motor vehicle accident was noted. No other significant injury events were recalled. No history of shoulder instability was indicated.

Dr Anthony Menz, consultant orthopaedic surgeon

60Dr Menz’ opinion was expressed in very definitive terms, and he did not “believe for one minute”[48] that the plaintiff sustained injury in the bus accident. He obtained a history of the plaintiff driving a bus which collided at low speed and resulted in only minor damage to the bus. He noted the plaintiff continued to drive his bus and about three weeks later attended his general practitioner because of left neck and shoulder discomfort. This was the first time he complained of any symptoms. He noted the plaintiff attended his general practitioner and was then referred to Dr Verrills who stated that there was a clear-cut cervical injury, although Dr Menz considered this a highly inaccurate assessment of the plaintiff’s neck condition.

[48]        DCB 22

61Dr Menz could not find a clinical indication for this C6/7 cervical discectomy and fusion and believed that the pathology revealed in the radiological investigations of both shoulders were purely age-related degeneration and there was no indication of the traumatic event.

The parties’ submissions

Plaintiff’s submissions

62It was submitted on behalf of the plaintiff that:

(a)   Based on the authorities, namely Humphries & Anor v Poljak,[49] Grech v Orica Australia Pty Ltd,[50] RJGilbertsons Pty Ltd v Skorsis,[51] Alcoa of Australia Ltd v McKenna[52] and Dressing v Porter,[53] it is permissible find that each of two or more compensable injuries, can be a legally sufficient cause of the same consequence.

(b)   The plaintiff had no symptoms prior to July 2016 and consistently since July 2016 he has experienced symptoms. The only traumatic incident in which he was involved was the transport accident and it was only the plaintiff’s assumption initially that his symptoms were attributable to the operation of gates on the buses. The plaintiff’s assumption about causation is not medically binding and there is no forensic significance from the fact that the Victorian WorkCover Authority has accepted liability and granted a serious injury certificate in relation to work injury.

(c)   The opinion of Mr Morris clearly attributes the emergence of the left-sided C7 radiculopathy to the transport accident. The onset of the plaintiff symptoms has been consistently described as gradually developing in July 2016.

(d)   Although Dr Reddy is not informed about the plaintiff’s transport accident, the plaintiff presented on 12 August 2016 with a history of onset of pain in the preceding last four weeks.

(e)   The opinions of both Professor D’Urso and Mr Doig can be relied upon as both doctors were properly appraised of the controversy surrounding the cause of the plaintiff’s injury.

(f)    I should not accept the opinion of Mr Menz as his use “fairly florid” language is inconsistent with a degree of impartiality that one would expect from an expert witness. Moreover, Mr Menz did not have available to him all relevant documentation when arriving at his opinion and his report is beset with inaccuracies.

[49] [1992] 2 VR 129

[50] [2006] VSCA 172

[51] [2000] VSCA 51

[52] [2003] 8 VR 452

[53] [2006] VSCA 215

Defendant’s submissions

63The defendant submitted that:

(a)   Consistent with the authority in Metro Trains Melbourne Pty v Graeme Allan Keay,[54] the plaintiff made a serious injury application in respect of the injury that arose in the course of his employment. In relation to the claimed injury arising from the transport accident, the plaintiff was required to identify the injury, the subject of the application and satisfy the court that it was the cause of the plaintiff claimed consequences, consistent with the principles in Rowe v Transport Accident Commission.

[54] [2023] VSCA 223

(b)   The plaintiff has not identified and separated the consequences from the transport accident from the injury suffered in the course of his employment. It is impossible from the evidence to discern the consequences of a serious injury resulting from the transport accident.

(c)   The consequences from the transport accident cannot be aggregated with the consequences from the work injury and “must stand alone” to justify a grant of leave.

(d)   The plaintiff’s treating general practitioner Dr Reddy, in his report dated 16 July 2022 does not make any comment with respect to a relationship between the transport accident and the plaintiff’s condition.

(e)   Dr Verrills makes no mention of the transport accident and relates the plaintiff’s complaints to the conditions of work. Dr Verrills makes a clear-cut association between the plaintiff’s severe and excruciating neck and left arm symptoms arising as a result of his work.

(f)    The plaintiff was careful to be accurate in his claim documentation and his WorkCover claim was completed on the basis that he developed pain in the left shoulder over time due to his work.

(g)   The treating orthopaedic surgeon, Dr Dallalana, treated the condition and did not provide opinion with respect to causation, and given the issue in dispute the court would have benefited from an opinion from him regarding the cause of the plaintiff’s condition.

(h)   Mr Buzzard saw the plaintiff in October 2016 and the plaintiff did not report any symptoms associated with the transport accident to him.

(i)    Mr Morris, the treating neurosurgeon relied on a history that the plaintiff had a minor low velocity accident and following that he had the onset of a quite clear left sided C7 radiculopathy but did not provide an opinion that the radiculopathy was caused by the transport accident.

(j)    The defendant also relied on Dr Menz who expressed an absolute opinion that the transport accident did not constitute in any way to the subject injury but conceded that Dr Menz took a strong position, and his opinion was just part of the evidence.

(k)   The transport accident occurred at low or very low speed which was a relevant matter to take into account.

(l)    The medico-legal opinions obtained from Professor D’Urso and Mr Doig came late in the piece and their opinions do not have the context of the dispute as to causation so their opinions are not helpful. The letter of instruction to Professor D’Urso in describing the onset of the plaintiff’s upper back, left neck and left shoulder pain does not set out the plaintiff’s history of initially attributing his symptoms to his work in moving the security door. The opinion expressed by Professor D’Urso that the condition came about as a result of the transport accident and no other contributing factor is an assumption. Their opinions are ultimately assumptions and do not show a path of reasoning.

Findings

64Whilst I am satisfied that the plaintiff sustained an injury to the neck which resulted in the C6/7 cervical discectomy and fusion and injury to the left shoulder, likely an aggravation of joint degenerative changes and subacromial bursitis for which he underwent surgery in the form of an arthroscopic chondroplasty decompression and bursectomy with resection of the acromioclavicular joint, each of which are likely to meet the threshold of serious consequences (and which the Victorian WorkCover Authority conceded), the state of the evidence is such that I am unable to conclude that these consequences were as a result of the transport accident.

65The plaintiff struck me as an intelligent and articulate man. Given his extensive background in insurance claims, insurance assessing and underwriting he acknowledged he was aware of the importance of making accurate reports.

66I note that the plaintiff conceded that the police report was accurate and based on his description to the police when he reported the accident. The police report states that he reported the accident because he had neck soreness since March 2017, and he possibly had a delayed whip lash.[55] Whilst it is clear there were neck symptoms reported before then, the significance of the neck symptoms may have only become apparent to the plaintiff following his consultations with Mr Morris.

[55]        DCB 38

67As I have already said, I found the plaintiff to be an intelligent witness. I find that he gave his evidence in an honest and truthful manner. Whilst there were times when he gave confusing and contradictory evidence, he ultimately made appropriate concessions. For instance, he initially did not agree that he had a claim against his employer for the injuries that came about as a result of driving the bus, but he subsequently conceded that he did. Moreover, he conceded that the work injury was still contributing to his conditions.[56]

[56]        T36-37

68His evidence initially in cross-examination was to the effect that the accident was not a low-impact or low speed collision, but he agreed that he described the impact as low-speed in the accidence/injury report form and to the police. He explained that immediately before the collision he was travelling at 45km per hour and braked so that at the time of impact he was going 35km per hour and it was possible both descriptions were accurate.

69Although at one point, he sought to downplay the repetitive nature of the operation of the manoeuvring of the doors or that he had to manoeuvre the doors on every shift, he conceded that the work injury still contributed to his condition.

70He explained his initial reports to Dr Reddy and Dr Verrill on the basis of assumptions he made at the time. His position changed as a result of his consultation with Mr Morris. It is not unusual for an event which was seemingly inconsequential to be ultimately responsible for causing significant pathology. There can be a delay in the emergence of symptoms and a delay in how they are reported. Such a delay or change in the manner in which symptoms are reported, may impact on a doctor’s assessment or opinion of the cause or aetiology of the medical condition.  This underscores the importance of obtaining medical opinion to address the causation issue to enable the Court to make findings on causation.

71It is not the plaintiff’s opinion or assumptions of the cause of the onset of symptoms that are determinative of the issue. Rather it is the totality of evidence including the medical and other evidence which is relevant to establish causation.

72When the plaintiff first attended Dr Reddy, on 12 August 2016, the transport accident had only recently occurred in the preceding few weeks, but he only reported left shoulder pain and made no mention of the transport accident. Indeed, there is no evidence that Dr Reddy was ever made aware of the transport accident.[57]

[57]        PCB 98-107

73The plaintiff accepted the proposition in cross-examination that if someone was involved in a car accident and they immediately experienced pain, then it was likely they were injured as a result of the car accident. However, he conceded that by December 2016, he was still reporting that his pain related to the general conditions of work.

74Similarly, there was no mention of his transport accident when he consulted Dr Verrills. Dr Verrills recorded in his clinical notes a history of the incident arising out of repetitive use as “everything on bus” was on the left-hand side such as the “blinkers/myki/lifting ramp/driver security door – Door is on left – to get out of bus has to push door back and around to the left – back behind the driver seat”.[58] His left “arm was constantly doing most the activities of dealing with customers and tickets, etc”. He also reported that his neck was aggravated at that time.[59] There is no evidence that was tendered that Dr Verrills was ever informed of the occurrence of the transport accident.

[58]        PCB 97

[59]        Ibid

75The plaintiff reported that the pain was radiating up the neck at the consultation on 12 August 2016 with Dr Reddy[60] and Dr Verrills diagnosed left C7/8 nerve root neuropathic pain on 14 December 2016.[61] The neck symptoms were clearly present when the symptoms initially came on.

[60]        Ibid 107

[61]        Ibid 97

76I consider the contemporaneous reports and complaints of symptoms the plaintiff made to his treating doctors Dr Reddy and Dr Verrills as important. When he experienced the emergence of symptoms around July 2016, he consulted medical practitioners to investigate the cause of those symptoms. He relayed to both Dr Reddy and Dr Verrills activities that he was engaged in at work at the time and there was a temporal association between the onset of the symptoms and the introduction of the security doors on the buses which required some force to manoeuvre. 

77Given the proximity in time of the transport accident, it would have been a very relevant factor for the plaintiff to mention this to his treating doctors. He deposed that he experienced a jolt through his left side of the neck and left arm at the time of the collision. That he did not mention this, suggests that the transport accident likely did not feature in his thinking that it was connected to his injury and emerging symptoms at the time. The plaintiff said as much when he completed the accident/incident report form on 18 July 2016.[62]

[62]        PCB 108

78The plaintiff’s decades of work experience in the insurance industry are relevant to his understanding of the need to take care in completing such documentation accurately, something which he acknowledged in cross-examination. The accident incident report form was completed in the plaintiff’s handwriting on the day of the accident when the events were fresh in his mind. I find in the circumstances that the report is an accurate description of the accident and accurately recorded that no injury was sustained at the time.

79I consider it relevant that Dr Verrills concluded that the plaintiff’s lower cervical spine injury was precipitated by his work, consistent with the description he obtained from the plaintiff of the mechanism of injury. Dr Verrills did not question the mechanism of injury or aetiology and accepted that the circumstances of the plaintiff’s work were responsible for causing the cervical spine injury.

80It is the plaintiff’s explanation, as deposed to in his affidavit affirmed on 9 August 2023, in respect of his WorkCover serious injury application that he could not say with certainty what the cause of his injuries were, but it was his “lived experience” that he first noticed symptoms of neck and left shoulder pain immediately after the ‘minor’ bus accident. In cross-examination he conceded that the injury that occurred in the course of his employment was still a contributing factor to his condition.[63] This underscores the importance of directing the treating practitioners and the medico legal examiners to the two potential causes of the plaintiff’s injuries and consequences.

[63]        T36-37

81I do not exclude the possibility that the transport accident is contributing to the plaintiff’s total condition. Clearly Mr Morris was appraised of the transport accident by the plaintiff and sought an acceptance of liability to perform an anterior cervical discectomy and fusion surgery on the plaintiff’s neck.

82Mr Morris would not be expected to appreciate the subtleties of the distinction between an injury in the course of employment involving the use of the bus and a transport accident as defined by the Act, when he sought an acceptance of liability to perform the surgery on the plaintiff’s neck. From Mr Morris’ brief description of the history that he obtained he appeared to relate the transport accident to the onset of left sided C7 radiculopathy. It may be inferred that it was his opinion that the C7 radiculopathy was a cause of the onset of the radiculopathy.

83However, I do not consider that his opinion is definitive that the transport accident was the cause of the injury although I was urged by plaintiff’s senior counsel, to accept that he did conclude that the transport accident was the cause of the onset of the left-sided C7 radiculopathy.[64] It is unclear whether Mr Morris was aware of the complaints by the plaintiff to the general practitioner and to Dr Verrills about the onset of the symptoms occurring as a result of the work he was undertaking in the course of his bus driving duties. It is unclear whether Mr Morris was aware of this controversy at all. Mr Morris’ opinion does not address what relevance the emergence of the symptoms in the context of complaints about work duties had on his opinion. Given Dr Verrills had no difficulty in attributing the development of the neck and left shoulder injuries to the work activities, this is a major omission.

[64]        T65-66

84The absence of any analysis by Mr Morris makes it difficult for me to accept his opinion as definitive. Mr Morris’ brief report which was prepared for the purposes of obtaining approval for surgery, does not address the critical issue in this case. There is no analysis of the relevance, if any, of the plaintiff’s symptoms emerging and being attributed to the plaintiff’s work, and whether that would have made a difference to his observation that the radiculopathy followed the occurrence of the transport accident.[65] I therefore find that Mr Morris’ opinion does enable me to find the transport accident was the cause of the plaintiff’s neck symptoms.

[65]        Defendant’s Court Book (VWA), 3-4; T89-90

85Both Dr Lucas and Associate Professor Buzzard accept that the plaintiff’s injuries are as a consequence of the duties the plaintiff performed in the course of his work. Given they examined the plaintiff on behalf of the Victorian WorkCover Authority, I would not expect that their opinions be revisited by the plaintiff’s representatives. The Court would have been greatly assisted however by a consideration by the treating medical practitioners of the relevant contribution to the plaintiff’s condition and consequences, of the two distinct causes of action, as well as their further opinions on the point.

86As has been often said, the opinions of medical and allied health professions are heavily dependent upon the acceptance of the plaintiff’s account. The opinion is only as good as the underlying history upon which it is based.[66] In this case, I consider that both the treating doctors and medico legal examiners are missing major pieces of the puzzle.

[66]        Rowe v Transport Accident Commission [2017] VSCA 377 at para 89

87Professor D’Urso was briefed with, among other things, reports from Mr Morris dated 5 April 2021 and 1 June 2017 and the operation report dated 28 April 2021 (none of which were tendered in evidence), the report from Dr Verrills dated 15 December 2016 as well as the plaintiff’s affidavit affirmed on 9 November 2021 and the opinions from Associate Professor Buzzard, Dr Lucas and Dr Doig (whose report also was not in evidence).  The history recorded in his report obtained from the plaintiff was confined to the transport accident and the plaintiff did not relay any problems he related to the work duties. Professor D’Urso described the development of symptoms as “after several weeks, he developed increasing neck and left shoulder pain…he stated his symptoms worsened such that he ceased employment as a bus driver in September 2016”.[67]

[67]        PCB 47

88The letter of instruction regarding a request for his supplementary opinion did not contain the nuanced history of the emergence of symptoms in the context of the plaintiff performing work duties and is somewhat inaccurate. Rather the letter refers to the plaintiff experiencing neck and shoulder pain “immediately” following the transport accident. This is not in keeping with the plaintiff’s reports to Dr Reddy and Dr Verrills nor his evidence that it was his assumption at the time that his symptoms were work related.  

89The letter of instruction goes on to state that the plaintiff continued to work as a bus driver and the work involving the operation of heavy retrofitted security doors using his left arm, caused his pain and symptoms in the left shoulder and neck to become worse. Again, this is not consistent with the contemporaneous reports of Dr Verrills and Dr Reddy. Professor D’Urso related the history that he obtained from the plaintiff at the time of the initial consultation and clearly relied on this in reaching his opinion. The absence of the very relevant history of the work accident, makes it difficult for me to accept his opinion as there is no proper analysis of the implications of the initial history. Professor D’Urso does not comment on Dr Verrills’ opinion that the mechanism of injury was consistent with occurring in the course of employment.

90Professor D’Urso described the accident as T-bone type of collision. The plaintiff denied telling him that the accident was a T-bone type of accident and that he gave him the explanation of the accident of the other driver failing to give way to him. The use of the expression of “T-bone type collision” by Professor D’Urso is likely his interpretation, albeit an inaccurate one of the circumstances as described to him by the plaintiff. I cannot say if Professor D’Urso may have been influenced by this descriptor in reaching his conclusion that the accident led to the development of a sensation and a jolting neck pain, but his description was wrong. I accept the plaintiff’s evidence that he did not tell him that.

91In relation to Mr Doig, whilst he accepts that the transport accident is causative, it is unclear whether he has any history of the other cause of the plaintiff’s onset of symptoms. He was not alert to the controversy in his initial opinions.  He was subsequently provided with a report from Dr Verrills dated 4 March 2017, which is not in evidence, when asked for an addendum to his opinion. He was also provided with the plaintiff’s affidavit affirmed 9 August 2023 and the report of Dr Menz. His addendum report dated 4 March 2024, makes no refence to the other cause of his neck and left shoulder pain and no consideration of the plaintiff’s initial attribution of symptoms to the work duties. His conclusion that the cause of the ongoing symptomology, is most likely due to the transport accident is unreliable given there is no proper analysis of the material which is highly relevant on the causation issue. I do not see that he has properly considered the aetiology of the onset of the plaintiff’s symptoms or Dr Verrills’ diagnosis contained in his report dated 15 December 2016.

92For those reasons, I cannot find that the opinions of Professor D’Urso and Mr Doig support the contention that the transport accident was the cause of the plaintiff’s injuries and consequences.

93I do not give much weight to Dr Menz’ opinion. His opinion commences with an outright rejection that the transport accident could have caused the plaintiff’s injuries and does not set out a clear path of reasoning as to how he arrived at that position. Moreover, I accept that his report contains a number of inaccuracies as outlined by plaintiff’s senior counsel.

94In light of the above, based on the medical and other evidence before the Court I am not satisfied that the plaintiff has delineated what injuries were caused by the transport accident, and only from that transport accident. It is impossible for me to discern what consequences standalone from the transport accident. The plaintiff has not identified to my satisfaction that the injuries and consequences the subject of the application were caused by the transport accident, consistent with the principles in Rowe v Transport Accident Commission.

Conclusion

95Therefore, the plaintiff having failed to discharge the onus that his neck and left shoulder injuries were caused by the transport accident, I must dismiss the application.

96I will hear argument with respect to costs.

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