Lynch v Transport Accident Commission

[2012] VCC 1050

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-10-04075

JASON LYNCH	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 3 August 2012
DATE OF JUDGMENT:	24 August 2012
CASE MAY BE CITED AS:	Lynch v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2012] VCC 1050

REASONS FOR JUDGMENT

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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Transport Accident – serious injury – impairment to the back – L1 fracture – psychiatric impairment
LEGISLATION CITED – Transport Accident Act 1986, s93
CASES CITED – Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.

JUDGMENT – Leave granted. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards SC with Ms E Tueno	Clark Toop & Taylor
For the Defendant	Ms M Hartley SC with Mr D Seeman	Wisewould Mahony Lawyers

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 10 June 2008 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the back.

4       The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

5       The serious injury defined by subparagraph (a) can 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, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.

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, be fairly described as at least “very considerable” and more than “significant” or “marked”?:  see Humphries v Poljak [1992] 2 VR 129, at 140-1.

7       The application was also brought in relation to sub-paragraph (c), claiming a severe long term mental or severe long term behavioural or emotional disturbance or disorder.   

8       The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would, prima facie, arrive; namely that the change in language from “serious” or “severe” betokens a change in meaning.   Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

9       Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

10      The plaintiff relied upon a statement dated 11 February 2010 and two affidavits, and he gave viva voce evidence.  The plaintiff also relied on an affidavit sworn by his partner, Mildred Boyd (“Millie”), on 1 August 2012.   She was required for cross examination, as was Dr Campbell, neurosurgeon, who provided a medico-legal report following an examination in July 2012.   In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s Evidence

11      The plaintiff is presently aged forty one, having been born in September 1970.   He is in a de facto relationship with Mildred Boyd, and he has two children aged eighteen and twenty.   

12      Before the said date, the plaintiff had not suffered any serious injuries or accidents, but he had used drugs for a considerable time.

13      In about 2000, the plaintiff was diagnosed with diabetes and schizophrenia and has been on medication for his psychological condition since that time.   The plaintiff deposed that as at the said date, his condition was well controlled.   

14      The plaintiff left school at the age of sixteen in 1986.  Thereafter, he worked for about eight months in an abattoir and then worked at his father’s service station until the end of 1989, when he went to Darwin and worked in a scrap metal yard.

15      In the mid 1990s, the plaintiff worked on and off as a window tinter for several years and in about 2000, he did some work as a vegetable picker.  In about 2002 to 2003, he did a bit of labouring work.   Otherwise, he has not worked since being diagnosed with schizophrenia.   

16      In cross examination, the plaintiff agreed he last worked in about 2000 and thereafter, he was on a Supporting Parent’s Benefit.  Whilst in receipt of this pension, he did not have to look for any work.

17      The plaintiff obtained sole custody of his two children and moved to Norlane in 2003, after his former partner had increasingly indulged in erratic behaviour associated with drug use.   

18      From the time the plaintiff moved to Norlane until the said date, he had concentrated on getting his life back together and sorting it out.   He obtained treatment for diabetes and had starting attending a mental health service in Geelong to regularly control delusions and psychotic episodes.  He was prescribed Seroquel, which he took regularly.

19      Most days for the plaintiff were busy taking his children to and from school and performing domestic activities.  The plaintiff deposed that his children were enrolled in North Shore Primary School and he helped out at the school installing water tanks and doing other jobs.  However, in cross examination, the plaintiff confirmed that as at the said date the children were not in primary school and were aged fourteen and sixteen.

20      The plaintiff walked his teenage children to and from school because he was afraid his sixteen year old son would truant and take his younger sister with him.

21      The plaintiff enjoyed making a good home for his children, doing all the house cleaning.   It took him about an hour to mow the big lawn, which he did weekly or fortnightly to keep the house and yard looking respectable.

22      Before the said date, the plaintiff enjoyed being active with his children, going dirt bike riding and doing weights with his son.  When living in Gippsland, the plaintiff’s son played soccer and the plaintiff coached his team.  The plaintiff’s son continued an interest in soccer when the family moved to Norlane and they went to the park regularly to have a kick.   

23      The plaintiff and his children had pushbikes which they regularly enjoyed riding around the foreshore and on fire tracks which were rough and bumpy.  They frequently rode for many hours at a time.

24      The children were enrolled in karate in Geelong.  The plaintiff accompanied them to karate and they all participated in training every Sunday morning, which was very vigorous and physical.  The plaintiff had no problems with this activity and his diabetes did not stand in the way of that or any other sport or recreations. 

25      Prior to the said date, the plaintiff had a serious interest in tattooing with a friend, Chris, a professional tattooist.  The plaintiff visited his shop most days and helped him and did odd jobs.   

26      The plaintiff then started tattooing for friends and kept an area of his Norlane Housing Commission home aside where he carried out tattooing, gradually building up to doing four or five tattoos a month.  That activity involved the plaintiff being on his feet and bending over for as much as seven hours at a time.

27      Tattooing was the plaintiff’s passion, designing, studying and actually tattooing.  He estimated that in Geelong before the said date he had tattooed up to sixty people.   He put tattoos on people up to two to three times a week working from home.   Generally, the tattooing took no less than an hour but sometimes it took up to six and a half hours per tattoo, depending on the nature of the tattoo.

28      The plaintiff had a strong back and could cope with the leaning and bending to get the tattoo right.   He did not advertise his tattooing work.  He did not have business cards but got work though word of mouth.  He was not earning enough from tattooing to advise Centrelink.

29      In cross examination, the plaintiff described how, before the said date, he did tattooing jobs for $20 and $30.  He would have thousands of people lined up at his door now at that price.  All up, out of everything he had done, he probably would have been lucky to have made a couple of hundred dollars – it was costing him. 

30      In return for tattooing his friends, the plaintiff was paid his expenses.   He was hoping to increase his tattooing involvement and become a full time professional with his own business as a tattoo artist.  Until he passed away, the plaintiff’s father was prepared to lend the plaintiff the money to set up the business.  The plaintiff had been told by his friends to keep practising and he would be offered work in the local area.

31      Before the said date, the plaintiff had seen one business for sale and seriously considered trying to buy it.   An acquaintance told him it would be easier to set up a new business than take over an existing one.  The plaintiff did a bit a research and found out there were quite a few vacant properties available.   

32      Further, prior to the said date, there were also many jobs available as an employee tattooist and no licence or training was required.

33      In examination-in-chief, the plaintiff showed his various tattoos.  He said he was tattooed all over his body except on his buttocks and the back of his legs.   Before the said date, he lived for tattoos and tattooing.

Mental Health before the Accident

34      The plaintiff deposed that before the said date, he was fit and well and loving his life.

35      The plaintiff commenced a relationship with Millie in August 2007.   They were very social and went to the pictures, shopping, and out to dinner in Geelong.   The plaintiff had a more conventional social life with Millie as she was not involved in the drug scene like his previous partner.

36      The plaintiff and Millie liked swimming and playing with the children.  They enjoyed walking along the Geelong foreshore for hours at a time, sometimes with the children.  They also kicked the football in the park with the children.

37      With his new relationship, the plaintiff’s hopes for the future increased and he felt happy.  He thought his medication and mental health issues were under control.   He was working hard to lead a good and normal life for his children and develop his relationship.  He had stopped consuming alcohol and had been able to avoid substances other than nicotine.   

38      In February 2008, Millie and the plaintiff became engaged.

39      In his affidavit of 1 August 2012, the plaintiff confirmed his psychiatric condition before the said date had been well controlled with medication, with good and bad days.   

40      On the whole, the plaintiff was able to function well in daily activities with his two children.  In about late 2007, the plaintiff stopped taking Seroquel as he was feeling well and he thought that ceasing that medication would have no effect on him.  However, stopping the medication was then his downfall.  He bluffed himself into thinking he was feeling good, stopped the Seroquel and then he went downhill. 

41      The plaintiff denied that he had told Dr Epstein that there was a managed changeover of his anti-psychotic medication prior to the said date.

42      After the cessation of Seroquel and marijuana, the plaintiff began feeling irritable, anxious and emotionally less stable.   As a result, in late May 2008, he was referred to Corio Community Mental Health Clinic (“Corio MHS”) by his general practitioner.  He was reviewed there by a psychiatrist shortly after, and commenced on Paliperidone medication to control his symptoms.   

43      The plaintiff thought, leading up to the said date, his emotional and psychiatric condition had improved with that medication.  He had stopped smoking marijuana periodically in 2008 and stopped totally in May of that year.   

44      The plaintiff agreed his condition must have been as described in the note from Corio MHS of 23 May 2008.  There had been times when he hit or kicked a wall.   He agreed that at that time he was getting worried that he was starting to get unwell.   He was having financial problems, having to support two teenage children, and he had quite a number of worries at that time.

45      In cross examination, the plaintiff denied that he was not fit and healthy before the said date, saying it was a time of change for him and his life was then getting better and he was going out and getting on with things.

46      The plaintiff then agreed that in the months before the said date, his sleeping was not good and that he had dietary problems, not eating “the best” at any time of his life.  Further, he accepted that in the months leading up to the said date, his mental health issues were not under control with medication and he was still using marijuana.   The plaintiff queried whether his cannabis usage prior to the said date could be described as heavy, and asked what it had to do with his case anyway.

47      There were days when the plaintiff was good but he had up and down days.   He felt better when he was with his children and Millie, and when he was alone he felt down.  He could not remember having poor concentration at that time.  The plaintiff agreed that children of the age of sixteen and fourteen were difficult to cope with.

48      The plaintiff explained that until after the said date, Millie had no idea he had schizophrenia or any other problems.  He tried to keep everything as much to himself as he could and did not tell everyone everything.

49      The plaintiff agreed that he had some problems before the said date, but they deeply worsened thereafter.  There was a dramatic change.  He then agreed his affidavits were inaccurate, but said he was still having quality time with his children, even though they were teenagers.   He put on a brave front in front of them.  In the two months before the said date, he was still going out but not as much as he did previously.  He was also still seeing Chris but on a less regular basis. 

50      The plaintiff went downhill at the start of the year and before that he was on the top of the world and would turn back time if he could.   

51      In other than the two or three weeks before the said date when he went to Corio MHS, he was doing the best he possibly could.   He was getting the children to school, feeding and clothing them and keeping a roof over their head. 

52      In the three weeks to a month before the attendance in May 2008, the plaintiff agreed he started having some difficulty with his mental state.   Before that, his social life was still good and he was going out as often as he could.   He was seeing Chris twice a week for tattooing, planning to have his own business.

53      After a little slip, when the plaintiff starting taking the new medication in late May 2008, things were starting to look up and he was coming good and he told the doctor that.   He was managing his schizophrenia on the new medicine.  He started to have belief in himself again and get up and get things done and re-focus everything back on track.  He had stopped taking marijuana. 

54      The plaintiff then had a good relationship with Millie and he was close to his children, enjoying activities such as the skate park.  At least every day he was doing something with them.  He was quite happy and content.   He did not have a lot but what he had was worth a lot to him.    

The Accident

55      On the said date, when the plaintiff was crossing the road outside his Norlane house, a car drove directly at him and struck him (“the accident”).   

56      Following the accident, the plaintiff felt immediate lower back pain.  He was taken by ambulance to Geelong Hospital (“the Hospital”).  He suffered bruising and a comminuted burst fracture of the L1 vertebra (“the fracture”) and later required psychological treatment.

57      The plaintiff was an inpatient at the Hospital until 19 June 2008.  During that time, his pain continued and he was given medication.  Thereafter, he attended as an outpatient. 

58      In cross examination, the plaintiff had very little recollection of signing the Transport Accident Commission claim form while in the Hospital.  He agreed that he was an inpatient for some time because steps had to be taken to adjust his living arrangements and also help him to cope with wearing a back brace.   

59      After discharge, the plaintiff was taught how to mobilise with crutches and he continued under the care of Dr Mathai at Corio Medical Centre (“Corio”), who prescribed Panadeine Forte and Endone.  The plaintiff wore the back brace for three months.  He was restricted and in pain at home and continued to use his crutches for about three months.

60      The plaintiff found it very difficult to adjust at home with his injury.  He was unable to help his children get to and from school or do housework without pain and had to rely on his children and Millie to do those tasks.  He found sexual activity caused a flare up in back pain.

61      In the first four to five months after his discharge, Millie bathed the plaintiff and also helped him dress.  She came over early each day or occasionally stayed over.   

62      Dr Mathai referred the plaintiff to Dr Munib, a psychiatrist, at the Hospital.  The plaintiff deposed he had undergone counselling with Joanne Hoffmann, but in cross‑examination, confirmed that in fact had not taken place.   

63      The plaintiff agreed that he would have said he was feeling good when he saw Dr Mathai in August 2008, two months after the accident, but he was on painkillers at that time and “did not feel anything”.  The plaintiff agreed that on 18 August 2008, he requested an increase in Effexor. 

64      In cross examination, the plaintiff disagreed he had had a falling out with Dr Mathai at the end of December 2008.  However, he had gone to see Millie’s doctor, Dr McGill, because he was dissatisfied with the treatment he was getting in terms of pain management and psychiatric care from Dr Mathai.   The plaintiff then returned to Corio, where he remained under the care of Dr Soo until the plaintiff went to Queensland in late 2010.

65      Save for the prescription of Voltaren in October 2009, the plaintiff was not given any medication or treatment for his back at Corio from the end of 2008.  The plaintiff could not remember his solicitors or anyone else organising an MRI scan of his back in September 2009.

66      As of February 2010, the plaintiff was taking Effexor, 150 milligrams a day, Voltaren for his back, Oxazepam to help with sleeping and Paliperidone for schizophrenia.   He had back pain every day depending on the weather and his level of activity.

67      The plaintiff deposed the accident injuries had a dramatic effect on his life and previous activities he had enjoyed.  Over time, he had become accustomed to his ongoing pain and its effect on his lifestyle.   His inability to be a good father affected him quite a lot.   

68      The plaintiff deposed that as at the end of 2010, he was restricted in most household tasks, experiencing back pain if he bent or stood for too long.  Tasks such as cleaning and lawn mowing were difficult.   The plaintiff still did them but often had to hand them over to his children.   He used to enjoy cooking and made the most of the household meals.  Following the accident, the plaintiff did very little cooking and has only been able to make small meals as he got back pain after standing for too long.

69      The plaintiff would not have told Mr O’Brien in October 2009 that he could manage household activities without any difficulty, as he was not managing.   

70      Six months after the accident, the plaintiff tried bike riding with his son but he had to stop because of severe back pain.   The plaintiff could not walk as far as he used to and had to take rests every so often.

71      About eight or nine months after the accident, the plaintiff tried lawn mowing but his pain became so intense that his daughter had to finish the job.   Since that time, the plaintiff has never been able to mow the whole lawn.

72      Once, after the accident, the plaintiff kicked a soccer ball, but doing so increased his back pain and he had not attempted having a kick since about 2009.

73      The plaintiff has not been able to dirt bike ride at all since the accident and lifting weights caused him back pain.   

74      As a result of the restriction in his activities, the plaintiff felt he had lost some of the closeness he had with his children, which upset him greatly.   

75      Before the accident, the plaintiff had two Rottweiler dogs but they had to be put down before he came home from hospital as they were too big to care for. 

76      In the middle of 2010, the plaintiff’s son moved out of home as his relationship with the plaintiff had deteriorated.  They are now estranged.  One of the problems was that his son was increasingly upset that the plaintiff could not do things any longer because of his injuries and he thought the plaintiff had stopped being interested in him.   The plaintiff’s daughter had also moved out of home.  The plaintiff now talks to her at least a couple of times a week on the phone.

77      When his children moved out, the plaintiff found it very difficult living on his own.   He struggled to cook and clean and the lawns were let go.   His daughter gave him some help with household tasks and cooking.

Tattooing since the Accident

78      Before the plaintiff was able to do anything about his plans for a tattooing business, the accident occurred and, due to his back pain, he was no longer able to pursue his business plan as he could not sit for long enough to tattoo successfully.

79      The plaintiff had two attempts tattooing after the accident.  He tried to do an outline on a friend.  However, after twenty five minutes, the pain from leaning over was so severe, the plaintiff had to stop.   

80      On another occasion, a mate needed shadowing and colouring.   The plaintiff was able to finish the fifteen-minute job but he was in so much pain, he could not enjoy it.   He had not attempted any tattooing since.

81      Tattooing was an activity he thoroughly enjoyed and was not only a social pastime but an activity that could lead to employment.   He simply can no longer do it and he is not the tattooist that he once thought he could be.   He just cannot sit comfortably and concentrate, which he is required to do when completing a tattoo.   

82      Annexed to the plaintiff’s affidavit was a copy of a photograph of the plaintiff engaged in tattooing, sitting behind a client, and various examples of the tattooing he had completed before the accident.

83      The plaintiff explained he had to sit and stand doing the job and move constantly and there was a lot of twisting.  Even a fit tattooist at the end of the day had back problems.   The plaintiff could not change the seating setup to reduce his problems.   

84      The plaintiff has not asked the Transport Accident Commission or anyone for help or funding in setting up a tattooing business.

85      In December 2010, the plaintiff moved to Queensland to reunite with Millie, who had moved there earlier in the year.  His children remained in Geelong.   

86      Since that time, the plaintiff has continued to see his general practitioner every fortnight.  Although seeing his doctor for diabetes, the plaintiff also discussed  his ongoing back pain.   

87      The plaintiff confirmed that he initially saw Dr Zhu at Loganlea and was then under the care of Dr Ting.   He agreed that neither doctor had organised any investigations of his back.  He obtained prescriptions for diabetes.  That condition was stable and did not give him any particular problem.

88      The plaintiff agreed he had never asked any doctor at Loganlea for tablets, but he had talked to them about his back.  He was told there was no treatment other than painkillers and as he had kidney and liver problems and with his history of drug abuse and diabetes, he could not afford to keep taking tablets daily.   He was taking enough tablets anyway.   When he took painkillers it gave him a “fazed over daze that you are doing well and it is not”.  Voltaren upsets his stomach and made him feel sick so he uses a massage cream like Deep Heat.

Current Activities

89      Since the accident, the plaintiff has never achieved unrestricted domestic activities because of his injuries.   He avoided heavy household tasks which were done mostly by Millie. 

90      When renting, the plaintiff tries to get a property without lawn or maintenance.   He would not be able to maintain a garden or keep up household maintenance because of his back pain.  He tries to do things around the house but most of the chores are left to Millie.  The plaintiff does not bother getting up to do much.  He does a little but he would not say it is anything compared to what she does.   He can do the same amount of the housework as he did when living in Norlane.  He just paces himself and if he does too much he suffers.   

91      The accident had also greatly affected the activities the plaintiff and Millie can do together and, as a result, their relationship was not the same as previously when they were always together and full of fun and doing things all day.   

92      Millie often wanted to go to the beach but the plaintiff generally declined because he found travelling there and standing and walking increased his back pain.  They went for walks late at night together because there were fewer people around.  The plaintiff could walk for about two kilometres, but had to rest during that time because his back became sore.  He no longer has a dog.

93      Millie often went to places or events with her friends or children and the plaintiff remained at home.  Most of his time is spent inside reading or watching television.

94      The plaintiff used to love being around children but if he now goes out, he gets sore and is in pain if he sits for too long or if he goes walking.   He often comes home early when he goes out with Millie.   

95      Since moving to Queensland, the plaintiff had tried to return to pushbike riding, but suffered a flare up after a short time and had to stop – he used to love bike riding and would really like to continue riding, however, his attempts have been painful.

96      The plaintiff tries to avoid activities which cause increased back pain and he has become more reclusive.  His activities have been limited to going out to pay bills.   

97      The plaintiff’s injuries have robbed him of the optimism, fitness and happiness that he had before the accident when he was raising his children in Norlane.   At that earlier time, he had reached the best part of his life and felt he could look forward to a good future.   He now suffered pain on a regular basis and when he attempted activities that gave him so much enjoyment in the past, his back pain flared up and he became despondent and miserable.

Psychiatric Condition

98      The plaintiff deposed that after the accident, his condition worsened.   He frequently became angry and irritable, which led to arguments on a frequent basis with Millie and his children.  He had trouble sleeping and suffered a loss of appetite and he also felt withdrawn and isolated and unwilling to engage socially.   

99      In cross examination, the plaintiff confirmed his condition was deeply worsened after the accident in every way.  The plaintiff had added nightmares and self doubt, he was very low, and “just nothing good seemed to go through [his] brain much these days”.  He reported these problems to Barwon Mental Health after the accident.   

100     The plaintiff was reviewed in late 2008 due to the worsening of his psychiatric condition.   He was then prescribed Effexor, initially 75 milligrams, and later that dosage was doubled and the plaintiff continued taking it for a prolonged period of time, as well as Paliperidone.

101     Dr Mathai recommended the plaintiff see a counsellor and he was referred to Joanne Hoffmann but he did not end up seeing her, preferring to stay under the care of his general practitioner.   Later in 2008, the plaintiff was assessed by Dr Aggarwal, psychiatric registrar, at the Hospital, who recommended treatment for Post-Traumatic Stress Disorder (“PTSD”).

102     After the accident, the plaintiff became aware the circumstances thereof were deliberate.   As a result, he was very frightened of further offending or contact by the perpetrator.   The plaintiff became hypervigilant and obsessive about checking and relocking doors and windows.   That situation lessened after he became aware of the perpetrator’s imprisonment and also following his move to Queensland, but he still worries when he is in Melbourne about himself and his children.   

103     At the end of 2010, the plaintiff regularly suffered nightmares about the accident and had very disturbed sleep.   He could not recall a night during which he had been able to sleep through.  Most nights he woke several times.

104     The plaintiff found himself thinking about the accident regularly during the day.  Millie had mentioned if they were out walking, and there was a lot of traffic and if a car went by too quickly, the plaintiff quickly tensed up.

105     The plaintiff had lost trust in people and now stayed at home a lot and did not go out socially as much as he used to.   As a result, he had lost lots of friends and found himself far more socially isolated.   For quite a long time after he came out of hospital, he could not have sex at all.   When he was able to, his back was painful and his libido was very much reduced, causing troubles with Millie, who thought she might not be as attractive to him.

106     The plaintiff continues to suffer nightmares and flashbacks with aggravations if he hears an ambulance or sirens or sees accidents on television.   His condition is aggravated when he hears screeching car tyres and he is apprehensive of cars, especially large cars, on the road.

107     The plaintiff continues have disturbed sleep.   He is restless and Millie is often aware of the situation.

108     The plaintiff suffers from regular panic attacks with heart palpitations and shortness of breath which are aggravated if he is in public.   He tries to avoid going to places such as supermarkets where there are lots of people.

109     In re-examination, the plaintiff described how his self belief now is “not sort of real good at all”.   His nightmares, flashbacks and panic attacks are very frightening.   He does not enjoy life at all.   He does not say it, but he thinks if he could go to bed and not wake up, he would “probably be a lot bloody happier”.

110     The plaintiff’s back injury continues to affect his sex life and libido.  Sex is  uncomfortable and unenjoyable because of his back pain and that situation has caused tension and guilt as he and Millie are no longer so close.   

Back Pain

111     The plaintiff’s back pain is constant and continues to nag him.  His pain travels into his hips and becomes worse if he tries any physical activity.  It flares up at least once a week, especially if he does too much.  His problems with prolonged sitting and standing persist and he is not able to get comfortable.   He is unable to run.  He tried running but his pain became intolerable.

112     The plaintiff generally wakes up stiff each morning with back pain which eases off sometimes during the day.

113     The plaintiff is generally despondent when he suffers pain after activity and he is just at an end to work out what he can actually do without pain.   

Work Future

114     The plaintiff does not think he could be reliable to hold down work because of his back and also because of his psychiatric condition.   

115     In cross examination, the plaintiff disagreed he told Dr van Ammers that he had a capacity for limited physical work and does not have the impression of the capacity for anything.   He is not planning to look for work and could not cope and be reliable for any work psychologically.   He cannot make and keep appointments and if was not for Millie, half the time he would get nowhere.   

Lay Evidence

116     The plaintiff’s partner, Millie, swore an affidavit on 1 August 2012.

117     Millie deposed that prior to the accident, she and the plaintiff had a happy and loving relationship, although not one without problems with their children.   They enjoyed a rather good relationship and a healthy sex life.

118     Since the accident, the plaintiff had become more and more distant and the circumstances of the accident had been hard for him to handle.

119     After the accident, Millie learned the plaintiff had had previous psychiatric problems, which she found hard to believe as she had not seen any sign thereof before the accident, when she thought the plaintiff was coping and functioning well.   He was loving, normal and well balanced and she did not observe him being crazy, moody or irritable.   

120     Since the accident, the plaintiff had become more moody and more irritable.   He became very despondent and reclusive and the accident had placed a great strain on their relationship.   The plaintiff became distant and his eating habits, which were previously normal, also changed dramatically.

121     The plaintiff lost interest in many things and his sleep pattern had become a problem.  He continued to have nightmares, which made it hard to sleep beside him and it was now not possible to sleep in his arms.   The plaintiff also cried in his sleep and continued to do so.

122     The sexual side of their relationship changed dramatically after the accident with no sex for eight months and thereafter, the plaintiff was in pain and avoided sex and they had to be careful when having intercourse.

123     As a result of his accident injuries, the plaintiff was not able to go skateboarding, bike riding and do other social activities with his children, thus causing his relationship with them to change and they became distant.   The plaintiff had since lost contact with his son and daughter, which was heartbreaking as they had an extremely close home life. 

124     The strain of the plaintiff’s altered circumstances had put pressure on their relationship.

125     Millie and the plaintiff moved to Queensland, thinking it might help to be away from the accident scene, and give them a fresh start, but that had not eventuated.   The plaintiff just cannot return to his pre-accident self.

126     The plaintiff’s awareness in traffic, both driving and walking, has been affected.   He has become anxious and not too confident in both respects and he is jumpy and nervous, thus Millie does most of the driving, particularly in heavy traffic.   The plaintiff becomes anxious and has panic attacks if he hears a car skidding or doing burnouts.   The plaintiff’s move to Queensland has not really helped the situation.

127     The plaintiff was a very confident person before the accident, but since then has become anxious, scared and irritated and has a hard time dealing with his lack of confidence and anxiety.  Millie was not saying the plaintiff had no problems whatsoever before the accident, as that was not the case, but he was previously capable of dealing with any situation calmly and responsibly, which was one of the qualities she admired in him.

128     Millie does most, if not all, the household work, because the plaintiff has difficulty with his back.   He tries to do some chores but takes too long and is much more cautious when doing things.

129     The plaintiff previously enjoyed bike riding.   He had tried a couple of times since the accident but had not been able to continue because of his back pain.

130     Prior to the accident, the plaintiff was a great tattooist and did many of Millie’s tattoos.   He loved tattooing.  It was his passion and his world.   She often saw him sitting drawing, going through magazines and collecting designs, but since the accident, the plaintiff had been unable to do tattooing as he once did.

131     The plaintiff cannot sit for too long and she notices he gets uncomfortable very easily because of back pain.   His concentration suffers and he has to stop tattooing.  This situation has caused the plaintiff a great deal of stress as tattooing was his passion and in some respects his only passion.

132     In examination-in-chief, Millie confirmed that before the accident, the plaintiff was confident, outgoing and happy.   After the accident, he had no confidence, was not happy, was irritable, angry and upset.   He went into himself and he is still like that and worse.   

133     In cross-examination, Millie confirmed the plaintiff now cannot do tattooing because he cannot sit for long.  His equipment is packed away in the cupboard.   Whilst the plaintiff could sit down for dinner for half and hour, he probably moves four or five times.   He gets up many times while they are sitting watching the television.   He gets off the couch and squats on the floor or stands up and changes position.  The situation is similar no matter what the plaintiff is sitting on.   

134     Millie confirmed tattoos cost $150 to $350.  She knew a bit about tattoos, having up to forty herself.  She last had a tattoo two years ago.  Just before the accident, the plaintiff had done her second-last tattoo.

135     The time the plaintiff spent on the tattoo depended on the nature and size of the tattoo.  Some tattoos could take an hour and some took up to six and a half hours, or longer.   The plaintiff probably charged between $400 and $600 for a big tattoo but she did not really know the details.   

136     Millie confirmed that just after the accident, the plaintiff was having nightmares every night but he also had discomfort from pain.  He used to cry in his sleep, maybe not every night, and he also talked in his sleep.  This was not the situation before the accident.

137     After the accident, Millie was often at the plaintiff’s home because she was the only one looking after him.   It was not possible to sleep in his arms after the accident.   He had nightmares every night she was there.

138     Millie confirmed that she and the plaintiff had a loving and happy relationship before the accident.  In the four weeks before the plaintiff was injured, she spent time with him riding pushbikes for hours and going to the beach.   

139     Millie did not notice any change at all in the plaintiff’s mood before the accident.  He was never aggressive or anxious.   She did not see any of those things in the plaintiff but he had seen a lot of that in herself because she had her own problems.

140     Millie could not recall attending Corio MHS with the plaintiff in May 2008.   She did not remember the plaintiff having any auditory hallucinations before the accident but knew she was having troubles in that time with her “mentalness”.  She had lost a job because of it and her son had moved to Queensland and she was not coping so well.   

141     Millie saw the plaintiff smoking marijuana daily in the period leading up to the accident.   He did not smoke a lot.   He was still able to function and do things like go on bike rides and have a kick with the children after having a smoke.   He was doing those activities even though his children were teenagers.

142     Millie said she had trouble remembering things at the best of times.   She could not recall the plaintiff going to hospital before the accident.   When asked further about the plaintiff’s pre-accident state, she said was in a severe state of suicidal craziness and she was not going to remember a lot of stuff.   

143     The plaintiff was then trying to help her deal with her problems and he would have had a tough time in that regard.   

144     Millie probably went to Corio MHS to see someone about her problems and could remember going to doctors connected to Barwon Mental Health.  Her involvement in family activities at that time was slowly decreasing.   

145     Millie confirmed that before the accident, the plaintiff’s eating habits were very good.   She could not remember him losing fifteen to twenty kilograms before that time or having a rapid weight loss in May.  She could recall that the plaintiff put on about fourteen kilograms in late December 2008.   

146     When asked about the plaintiff’s level of socialising before the accident, Millie said she was not going out.   Seriously, she was not quite right at the time from January.   Her head was “totally scattered”.  She could not remember the plaintiff kicking or hitting a wall before the accident and she in fact threw a cup at him.   Her mental state from January 2009 caused problems between them, because she was suicidal.

147     Millie confirmed the plaintiff had lost contact with both his children since the accident.  When the plaintiff’s evidence about his daughter was put to Millie she said the relationship was not as good as before the accident.

148     Millie confirmed she did all the housework because of the plaintiff’s back injury but she was not really that capable.  The plaintiff could  bring out the dinner dishes and wash the mirror in the bathroom, but not really do much more.   Before the accident, the plaintiff was very clean and he was on top of everything, doing his own cleaning.   Since the accident, he has needed help from his family.

149     In re-examination, Millie confirmed her problems before the accident and that the plaintiff did the best he could in being supportive.   He was managing diabetes and she did not have to help him with it.   Her problems were causing a tough time between them.  They still had problems with the kids being a bit jealous.

150     Millie and the plaintiff now lived together under the same roof but in separate rooms.   They rarely slept together as the plaintiff was restless.  Their sex life was not good. 

The Plaintiff’s Medical Evidence

151     An ambulance attended the scene following the accident.   

152     The ambulance report set out there was no loss of consciousness.   The plaintiff had full recall of the accident and impact.   He denied headache or neck pain.  There was no respiratory distress, abdominal or pelvic discomfort.   The plaintiff was complaining of nine out of ten pain to the lower back.   

153     It was reported there were nil obvious injuries or deformity of the back.   The plaintiff stated there was no impact to the head or neck during the accident. 

154     It was noted there was a past history of schizophrenia, Diabetes Type 1, injecting drug use.   The plaintiff said he last used drugs ten years earlier.

155     Following an attendance at Corio on 19 May 2008, it was noted:

“? psychotic, getting angry easily, poor sleep, referral for counselling.”

156     The plaintiff next attended on 2 June 2008.  He then reported that he was happy with Paliperidone but wanted to increase his dosage.   

157     Dr Mathai, from Corio reported to the Transport Accident Commission on 4 September 2008.

158     Dr Mathai noted the plaintiff’s first consultation on 22 June 2008 following the accident.  The plaintiff was then using two crutches for mobilisation.   

159     The plaintiff was reviewed on 26 June and 8 July 2008.  On 1 August 2008, he reported feeling much better.  He was wearing a back brace and using the crutches only as a support.   

160     On review on 18 August 2008, the plaintiff advised he was happy with 75 milligrams of Effexor but it was not enough.  He agreed to a referral to Joanne Hoffmann for counselling.  It was noted there was no change in the plaintiff’s  Paliperidone intake before or after the accident.   Thereafter, he was prescribed Effexor, 150 milligrams, and pain tablets.

161     Mr Simon Williams, orthopaedic surgeon, reported in September 2009.   

162     Mr Williams last saw the plaintiff on 15 June 2009 in the outpatients’ clinic at the Hospital when he noted the plaintiff was no longer wearing his brace.  At that time, the plaintiff still experienced pain in his lower back and upper right leg, mainly at night, and also when walking.

163     On examination, Mr Williams noted the plaintiff’s lumbar spine moved quite well and he did not seem to have any increased pain with movement.   There was no obvious neurological lesion in his lower limbs.

164     There was no change in recent x‑rays from those taken in September 2008 and Mr Williams felt the fracture was united and stable but noted there was an obvious angulation of the plaintiff’s spine at the fracture due to the significant compression.

165     Mr Williams advised the plaintiff he did not need to see him again and explained to him that, unfortunately, he would always have some degree of pain and stiffness of his lumbar spine secondary to his injury.   Mr Williams did not think this would progress to any major neurological problem and explained to the plaintiff he would be happy to review him if his pain deteriorated.

166     Mr Williams concluded the plaintiff sustained a severe injury of L1 vertebra  involving a compression fracture involving the anterior and middle columns.   He noted the plaintiff was treated non-operatively and had progressed remarkably well.  However, he suspected the plaintiff would always experience some discomfort in his back related to his injury.

167     Dr Ting from the Loganlea Medical Centre (“Loganlea”) reported to the plaintiff's solicitors in November 2012.  He noted that the plaintiff gave a history of a compression fracture of L1 sustained in the accident. 

168     Dr Ting reported that no investigations specific to that injury had been undertaken at Loganlea.  Further, no specific treatment was requested for the plaintiff's L1 injury but, for his mental condition, the plaintiff was diagnosed with depression and treated with Seroquel, 100 milligrams, four tablets nightly, plus Alepam, 15 milligrams, one tablet nightly.

169     Dr Munib reviewed the plaintiff on 22 July 2008 at Corio MHS.   The plaintiff was then on crutches.   He was experiencing poor sleep and appetite, motivation and lack of self-esteem.  The plaintiff then did not exhibit any overt psychotic symptoms.   He was feeling suspicious about strangers and preferred to avoid social contact.  He denied any deliberate self harm ideation but experienced anergia, anhedonia and hopelessness with overwhelming feelings of inadequacy and insecurity.   He mentioned his mood was frequently volatile.   

170     Dr Munib noted the plaintiff had been compliant with Paliperidone and mentioned his symptoms were improving prior to the accident.  On 23 July 2008, Dr Munib wrote to Dr Mathai advising him of the commencement of an antidepressant and referral to appropriate services for post-traumatic psychological therapy.   

171     Ms Elkington from Barwon Health Community and Mental Health reported on 5 December 2008.   She noted the plaintiff presented at Corio MHS at the request of his partner with increasing irritability and agitation, wanting to hurt people, complaining of poor sleep, nightmares, being run over and getting shot and racing thoughts.   Ms Elkington noted the plaintiff was the victim of a hit and run and he had become increasingly irritable and paranoid since that event.   His fiancée advised that the plaintiff had been experiencing symptoms such as flashbacks and reported poor sleep and appetite.

172     Ms Elkington noted there was no formal psychiatric history until review by Dr Munib and his team in May 2008.   It was noted that many years ago, the plaintiff was treated on antidepressants and until six months ago had been using Quetiapine.

173     The plaintiff described himself as being aggressive and troubled during childhood and early adolescence.   A history was noted of Type 1 Diabetes and L1 compression fracture.

174     Ms Elkington reported that the plaintiff was a thirty eight year old, with likely reactive depressive illness secondary to trauma complicated by a co-morbid possible psychotic illness.  She noted there were additional symptoms, including poor sleep, increased irritability and verbal aggression, anxiety and agitation in public situations and flashbacks and anxiety when exposed to reminders of the trauma.   She thought the plaintiff had good insight.   Suggested treatment was medication to address areas of poor sleep and paranoid ideation, together with a tentative appointment in December with Dr Agarwal.

175     In a progress note of 12 December 2008, Dr Agarwal reported following the plaintiff’s attendance at Corio MHS.   The plaintiff then complained of feeling low and dysthymic and feeling apprehensive, anxious and pessimistic about the future.   He described disturbed sleep and appetite and ongoing emotional stress adversely affecting on his family relationships.

176     The plaintiff said he felt better initially after the prescription of antidepressants but then started feeling as before after a while.   Dr Agarwal noted that the plaintiff had been compliant with Paliperidone.  She also noted the plaintiff had not received any counselling for his PTSD so far.

177     Dr Agarwal advised Dr Mathai on 12 December 2008 that she had reviewed the plaintiff that day and repeated the details set out in the progress note.  She suggested that the plaintiff would benefit by referral for psychological therapy relating to PTSD.

Investigations

178     There was a CT scan of the thoracolumbar spine from mid T3 to the sacrum carried out on 10 June 2008. 

179     It was reported there was a comminuted burst fracture of the upper endplate of L1 with thirty five per cent reduction in vertebral body height.

180     Dr Soo organised an MRI scan of the plaintiff’s lumbosacral spine in September 2009.   

181     It was reported there was a compression fracture of the L1 vertebra.  No significant retropulsion of the fracture was seen.   There was disc desiccation at T12-L1, L4-5 and L5-S1 levels.   There were defects in bilateral L5 pars suggesting spondylosis.   There was no significant spondylolisthesis which could be seen. 

Medico-Legal Examinations

182     Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 28 November 2008 and re-examined him on 12 October 2009 and 8 November 2011

183     On the final examination, the plaintiff told Mr O’Brien there had been some further improvement in severity of low-back pain, with him stating it was now basically intermittent, mainly in the upper to mid lumbar region, but precipitated by prolonged walking and sitting.   

184     The plaintiff described the severity of his pain being reaching three to four out of ten on the visual analogue scale, having recorded it in a range of two to five out of ten in October 2009 and three to four out of ten on the first examination.

185     The plaintiff reported to Mr O’Brien that he remained capable of all the normal activities of daily living.   He stated he was not particularly active and did little in the way of domestic duties.

186     On examination, the plaintiff was observed to move quite freely.  His thoracolumbar spine was straight, there being a mild lumbar lordosis.   Flexion was sixty degrees with fifteen degrees of extension, twenty degrees of lateral flexion to the right and ten degrees to the left, with some thirty degrees of rotation.   The plaintiff, in fact, described some tenderness at the thoracolumbar junction.

187     Passive straight leg raising was sixty degrees bilaterally and the plaintiff was capable of active straight leg raising.

188     Power and reflexes in the lower limbs were normal.  The plaintiff described some vague sensory change to light touch in the right toes but this did not appear to correlate with any nerve root, or indeed peripheral nerve distribution.

189     Mr O’Brien concluded the plaintiff sustained a significant comminuted fracture of the body of L1 when struck in the accident.  Mr O’Brien noted post fracture, the severity of back pain was reported as slowly improving and x‑rays had in fact demonstrated union of the fracture at L1 with residual compression of the body of L1.   

190     In addition, Mr O’Brien thought there had been documented disruption of the T12-L1 disc, which appeared to have been the source of ongoing symptoms which continued to be aggravated by mechanical factors.

191     Mr O’Brien again concluded that the plaintiff continued to have discogenic pain secondary to post-traumatic disruption of the T12-L1 disc, consistent with the stated cause.

192     Mr O’Brien believed the plaintiff’s clinical condition was stable and noted he clearly coped with his pain by limiting aggravating factors.   He considered the plaintiff’s prognosis was satisfactory and thought he had mild residual back pain.

193     Mr O’Brien considered that the mild disability rendered the plaintiff certainly incapable of undertaking any form of heavy physical work and considered it unlikely the plaintiff would ever resume gainful employment considering he was in receipt of a disability pension, predominantly for non musculoskeletal ongoing problems.   Nevertheless, Mr O’Brien thought the plaintiff’s persistent back pain did continue to cause definite restriction of his general, social, domestic and recreational activities that was permanent.

194     In a supplementary report of January 2012, Mr O’Brien advised, given the nature of the plaintiff’s persistent spinal pathology, he considered the plaintiff would not be capable of prolonged periods of sitting while undertaking any form of work and that that would preclude him from undertaking full and unrestricted duties as a tattooist.   

195     Dr Campbell, neurosurgeon, reported following an examination in July 2012.   He has been the Director of Neurosurgery at the Royal Brisbane Hospital for the last  ten years.   

196     Dr Campbell diagnosed a crush fracture of L1 (greater than fifty per cent loss of vertebral height) treated with bracing.

197     Dr Campbell noted that in the four years since the accident, the plaintiff continued to complain of low-back pain and stiffness which occurred daily.  The plaintiff rated his pain, which radiated across to both hips, up to seven out of ten on the Visual Analogue scale.

198     The low-back pain was aggravated by physical activities and the plaintiff had difficulty sitting in a hard chair.

199     On examination, the plaintiff walked with a normal posture and gait and sat comfortably.  Examination of the lumbar spine revealed decreased flexion by thirty per cent and extension reduced by forty to fifty per cent.  There was pain and stiffness at the extremity of those movements and there was tenderness and guarding over the lumbar spinal muscles bilaterally.   Lower limb power reflexes and sensation were normal.

200     Dr Campbell noted the June 2008 CT scan and the September 2009 MRI scan.  He concluded the plaintiff’s history was consistent with a crush fracture of L1, after which the plaintiff experienced the immediate onset of low-back pain. 

201     In Dr Campbell’s view, the plaintiff had received appropriate treatment and he required no further treatment.  As such, the plaintiff’s condition could be considered chronic.

202     Dr Campbell thought the plaintiff’s ongoing management should be based on the avoidance of aggravating factors.   In his view, the plaintiff’s prognosis with regard to re-entering the workforce was poor due to a combination of the fracture and other medical problems, including diabetes and schizophrenia.   He considered the plaintiff’s lumbar injury alone would prevent him from engaging in any form of manual work, noting the plaintiff had only ever been employed in unskilled manual jobs in the past and he would be no longer able to work in any job for which he had the skills, experience or training.

203     Dr Campbell would not recommend the plaintiff perform tattooing work as the plaintiff was intolerant to prolonged sitting, especially on a hard chair, and would struggle to lean over a client to perform precision artwork. 

204     In examination-in-chief, Dr Campbell confirmed there had been a progression of the crush fracture to greater than fifty per cent loss of vertebral height.   That was a reasonably common finding until the fracture reached a steady state and the further progression could depend on how unstable the fracture was.  The crush fracture involved fragments bursting out to the front, back and to the sides, unlike a wedge fracture.

205     Dr Campbell confirmed the plaintiff’s complaints were consistent with the crush fracture with ongoing pain to the region which restricted his ability to sit and perform day-to-day activities.   Having persisted for four years, he thought it was very unlikely the plaintiff’s symptoms would resolve at this stage and it was likely they would be ongoing.   

206     Noting the plaintiff left school at Grade 10 and had done basically unskilled work since, realistically, Dr Campbell considered the plaintiff was unemployable.

207     In Dr Campbell’s view, whilst tattooing on face value seemed a reasonably simple task, it did involve prolonged sitting and concentrating and doing fine detailed work.   It was non reversible, so there was no room for any mistakes, so he did not think a return to tattooing would be in the best interests of the plaintiff’s clients.   

208     In cross-examination, Dr Campbell agreed he was at some disadvantage, having seen the plaintiff only once.   However, in his view, there was objective evidence of a significant injury with strong links between the radiology, the cause of the problem and the plaintiff’s symptoms.   

209     Dr Campbell confirmed he had not used a goniometer or incremometer to measure the plaintiff’s restriction of movement, just giving a percentage figure of a full range of movement.   He thought there was a moderate restriction of movement.   He agreed that flexion and extension would naturally decline with age.   

210     Dr Campbell agreed the plaintiff’s own pain rating of seven out of ten indicated moderately severe pain.  Dr Campbell’s concern however, was how frequently a patient had pain.   He saw a lot of medico-legal patients and found there was a wide variety of reporting as to their severity of pain. 

211     Dr Campbell explained the plaintiff may not be taking painkillers for a number of reasons, such as drowsiness or interference with work, or that the tablets did not work.   He agreed it could be a reasonable conclusion to come to that less tablets meant less pain.

212     Dr Campbell agreed the plaintiff could perform some activities of daily living and others he could not, and that would place him the middle of the scale.   When it was suggested to him the plaintiff did not have to stand much while giving evidence or appear to have problems sitting, Dr Campbell thought giving evidence was not a normal occurrence and a person might be afraid to stand up in court when doing so.   

213     Dr Campbell thought it was possible if the plaintiff had a good chair that he could sit for longer.   He considered the plaintiff was not employable because of his back injury, but it would be reasonable for him to attempt light duties such as office work, computer work or maybe some sales work.   He thought a car park attendant job would be reasonable to trial but warehouse work was unsuitable.

214     In Dr Campbell’s view, the plaintiff’s problems were going to come with chronic pain, difficulties with sitting and his ability to find a job.   He considered that the plaintiff presented as a very unemployable person and would need a very sympathetic employer to take him on.   

215     Dr Campbell thought it would be reasonable for the plaintiff to attempt a five to ten-hour week initially and upskill thereafter, but he considered the plaintiff’s chances of staying in the workforce were not good.   

216     When jobs with a range of restrictions were put to Dr Campbell, he confirmed he did not think the plaintiff was employable.   These restrictions were all okay in theory, but on the open market, he thought the plaintiff would not be able to compete and he would have difficulty training and then holding down a job.   His other problems of schizophrenia and Type 1 Diabetes would add to this difficulty.   

217     When it was suggested to Dr Campbell that problems of sitting and leaning over could be dealt with by the plaintiff’s self pacing and moving about, he agreed it might be possible for the plaintiff to do tattooing maybe one or two hours a day, but he would not be able to build up a business and have goodwill and regular clients.  Dr Campbell thought there would be a lot of leaning forward, a lot of awkward posturing and a lot of prolonged static posturing with tattooing despite any assistance that the plaintiff may get with ergonomic furniture.

218     Dr Campbell confirmed that the history given to him by the plaintiff suggested that his children had left home on amicable terms and their leaving had nothing to do with the plaintiff’s back condition.

219     In re-examination, Dr Campbell thought it would be very difficult for the plaintiff to do tattooing where he would have to do precision work.  He considered the plaintiff would not be able to run a commercially viable tattoo business.   He did not think that in the open marketplace the plaintiff was employable.   He thought the plaintiff’s back injury had rendered him unemployable as a stand alone injury, although he did recognise the plaintiff had other problems that would contribute to the overall scenario.   He did not think the plaintiff would be a very good candidate to retrain, now aged forty one and never well educated, with a history of only labouring work and his chances of reskilling were poor. 

220     Dr Campbell thought there was a link between increasing pain levels and the progression of the fracture.   It was not a strong link, but commonsense would dictate there was a link, and it was an explanation for the increase in pain from the levels described to Mr O’Brien.   

221     Dr Campbell agreed that there was a reasonable basis to be wary of continuing medication in circumstances of kidney and liver dysfunction and a previous intravenous drug use and by reason of his diabetes.  He noted obviously if painkillers were not taken, a plaintiff would have heightened pain levels which would impact on his daily activities.

Medico-Legal Examinations

222     Dr Michael Epstein, psychiatrist, examined the plaintiff in December 2008, November 2009 and most recently in November 2011. 

223     On initial examination, the plaintiff told Dr Epstein that prior to the accident, his psychosis was well controlled.  He also advised that in about mid 2008, his antipsychotic medication was changed to Paliperidone because he found the Seroquel too sedating.

224     The plaintiff told Dr Epstein he had nightmares about the accident every night and woke in a cold sweat.   He had occasional panic attacks and he had flashbacks of the accident and continued to be worried about his own safety.  He was constantly depressed but did not feel suicidal.   The plaintiff was then taking Effexor, 150 milligrams at night, plus Paliperidone.   

225     Following the first examination, Dr Epstein diagnosed a chronic PTSD associated with Panic Disorder and agoraphobia, together with ongoing physical symptoms.  Dr Epstein thought the combination of those conditions had led to a Chronic Adjustment Disorder with Depressed Mood.   

226     In Dr Epstein’s view, the plaintiff’s psychotic illness had not been reactivated and he had no current symptoms of that condition.   As it was only six months after the accident, he thought the plaintiff’s condition could not be regarded as stable.

227     On re-examination in November 2009, the plaintiff still had nightmares about the accident two or three times a week.   He had flashbacks every three or four days and continued to be worried about his own safety.   He felt depressed four days out of seven and remained very concerned about his future. 

228     Dr Epstein noted that since the first examination, the plaintiff’s symptoms had improved to a limited extent and his PTSD symptoms appeared to be less severe.  His level of depression had also improved.   Dr Epstein thought there were several factors contributing to that situation, including the plaintiff’s reconciliation with his partner, the plaintiff’s partner having a young puppy to keep the plaintiff occupied and the imprisonment of the two offenders.   Dr Epstein then diagnosed a mild stable PTSD.

229     On the most recent examination, the plaintiff reported he still had nightmares about the accident two or three times a week.   He still had flashbacks every three or four days.   He still had difficulty sleeping and he had lower back pain, worse with activity.   He did limited housework and no gardening.   The plaintiff said he felt flat most of the time and was less sociable.   Three to four days a week, he became quite depressed and was sometimes tearful.

230     Dr Epstein noted there were significant concerns about the plaintiff’s mental state only three weeks before the accident, with him being agitated with command auditory hallucinations and his mood was unstable.  The plaintiff also had significant weight loss affecting his diabetes.   He was experiencing paranoid delusions that people were watching him.

231     Dr Epstein concluded that it appeared the plaintiff’s psychotic state had continued over the last two years with some fluctuations and remissions, but with appropriate medication his symptoms became relatively stable and he could function despite having delusions and hallucinations.   Dr Epstein thought it appeared that the major cause of the plaintiff’s distress came from his PTSD symptoms, his continuing mild fears of reprisals from his attackers and from his depression.

232     Dr Epstein confirmed his previous diagnosis, adding that the psychotic illness had been reactivated and the plaintiff had paranoid delusions and auditory hallucinations.  Dr Epstein confirmed the plaintiff’s mild PTSD appeared stable.

233     Dr van Ammers, psychiatrist, examined the plaintiff on behalf of the defendant in April 2011.

234     The plaintiff then told him that although he was initially fearful of being pursued by his attackers, he no longer had that concern.  The plaintiff said the move to Queensland was partly motivated by the discomfort he felt with the geographic association with the accident.

235     Dr van Ammers noted that the plaintiff told him that there had been more psychological than physical sequelae of the accident.   

236     Dr van Ammers thought the plaintiff’s condition met the criteria of a PTSD.  He noted there was a traumatic event which, in itself, was physically life threatening.  The plaintiff described re-experiencing the accident with disturbed sleep, symptoms of anxiety, up to a couple of nightmares every night on a nightly basis, staying in bed late, ruminating about the accident and its effect on his function, particularly precipitated by noise or situations triggering his memory.  The plaintiff had recollections of the accident but not archetypal flashback experiences where he was reliving the accident.

237     There were symptoms of avoidance, with the plaintiff preferring to stay at home feeling anxious and uncomfortable outside the house.  There was anxious arousal, with the plaintiff describing himself as no longer being cocky or confident and socially outgoing as he was before, with feeling uncomfortable in crowds, particularly when there was talking or noise.   

238     The plaintiff described himself as tense and irritable.   Outside of the house, he had high anxious arousal but no startle response.   He said his concentration could be impaired.   Infrequently he had a racing heart.

239     With respect to depressive symptoms, the plaintiff told Dr van Ammers he was often miserable and his energy was lessened.   He enjoyed different things to previously.   He had lost twenty kilograms.   He had some guilty and self critical thinking.   He has some suicidal thoughts but no intent. 

240     The plaintiff reported being frequently suicidal when younger with an overdose at the age of sixteen, and treatment for depression in 2003 at the time of a marital separation.   The plaintiff told Dr van Ammers of his history of Schizophrenia and significant emotional symptoms in his teenage years with a significant alcohol and drug history with intravenous amphetamines between 1991 and 1996 and cannabis use until the accident.

241     The plaintiff reported an improvement in both pain and functioning over the years since the accident.   He advised he was not very keen on counselling and his current medication was Paliperidone with Oxazepam, a hypnotic.   

242     The plaintiff told Dr van Ammers of his tattooing interests and that he thought there would be a possibility of unskilled or semi skilled labour which did neither put pressure on his back or expose him to a noisy environment.   The plaintiff told him he was functioning at home with respect to activities of daily living.   He assisted with cleaning and described himself as a keen chef who produced good quality meals.

243     Dr van Ammers thought on examination, that the plaintiff was not obviously tense or anxious.   The plaintiff’s underlying mood was not considered to be depressed although clearly he was unhappy with his predicament.   

244     There were no psychotic symptoms and the auditory hallucinations described had not been truly psychotic in nature.   Dr van Ammers noted these phenomena occurred not uncommonly in people who came from complex psychological backgrounds where their intents and internal thoughts were experienced as auditory phenomena.

245     Dr van Ammers concluded that despite his history, the plaintiff had functioned well as a solo parent.   He thought the plaintiff was probably misdiagnosed with schizophrenia.   He commented that both the pattern of symptoms and the plaintiff’s current level of functioning would not justify such a presentation.

246     Dr van Ammers thought the significant psychological symptoms complained of following the accident were compatible with the diagnostic criteria for PTSD.   He considered there was a degree of discrepancy between the nature of the assault, the plaintiff’s psychological experiences at that time and the development of symptoms subsequently which were of an extreme nature.   

247     In Dr van Ammers’ view, this and the fact the plaintiff was not inclined to pursue treatment were explained by the underlying developmental and personality variables, and that people who come from such a background are often affected by an assault more significantly because there is an underlying vulnerability and they are less likely to see the benefits of a psychological treatment paradigm.   

248     Despite those comments, Dr van Ammers was clearly of the view the plaintiff would benefit from seeing a clinical psychologist with appropriate training to learn, at a minimum, anxiety management strategies and sleep hygiene techniques, and possibly look at more specified targeted therapies such as exposure treatment to focus on more core symptoms of PTSD.   He also thought there would be benefit to considering a trial of antidepressant, Mirtazapine, which was both sleep promoting and had an anti-anxiety effect.

249     In real terms, Dr van Ammers thought the plaintiff may never be able to find meaningful employment but noted possible work options, included tattooing, restaurant or catering in a quiet establishment, reception or caravan park attendant work.

250     Dr van Ammers thought the plaintiff’s current domestic and social activities were not affected with respect to functioning in the home environment.  In his view, currently there appeared to be minimal connection between the plaintiff’s presentation and his back symptoms.

251     Dr van Ammers provided a supplementary report, having been provided with clinical notes detailing the plaintiff’s treatment in the month preceding the accident.

252     Dr van Ammers referred to the diagnosis made at that time of drug induced psychosis/schizophrenia and the fact the plaintiff was started on a different antipsychotic medication, noting that there was no review before the accident.

253     Dr van Ammers confirmed that he did not concur with the diagnosis of schizophrenia.   He noted the plaintiff had a very troubled childhood which predisposed people to unstable personality.   That was evidenced by the choices and circumstances in the plaintiff’s life, as well as heavy substance use as one of his maladaptive coping mechanisms.   

254     Dr van Ammers thought it may well be that at some stage heavy illicit substance use precipitated some abnormal symptoms, noting that many people who have troubled personalities hear voices.   

255     Dr van Ammers noted that at presentation in May 2008, and also when seen by him, the plaintiff demonstrated good insight into the abnormal nature of his psychotic symptoms which was uncommon in schizophrenia.

256     Dr van Ammers thought the atypical antipsychotic medication taken by the plaintiff in a substantial dose could be very useful for people who had unstable personality.   He noted the plaintiff’s presentation in May 2008 was different to when the plaintiff presented to him.   The plaintiff still complained of depressive symptoms but was not describing lability.   He was not experiencing psychotic symptoms consisting of auditory experiences or persecutory feelings.   The predominant aspect of the plaintiff’s presentation to Dr van Ammers was that of anxiety as it presented in patients with PTSD.

257     Dr van Ammers concluded that no doubt the extent of the plaintiff’s PTSD, as well as its chronicity could be explained by underlying vulnerability factors.   He thought the current presentation manifesting as PTSD had arisen subsequent to the accident.

The Defendant’s Medical Evidence

258     Dr Mathai referred the plaintiff to the Corio MHS on 19 May 2008.   He noted that “query – psychotic again” and also that the plaintiff had stopped Seroquel six months ago.   He was getting angry easily and had poor sleep.  “? Intermittent suicidal thoughts.”  In past history, it was noted schizophrenia in 2007. 

259     Progress notes from Rachel Reid of Corio MHS dated 20 May 2008 set out the plaintiff reported being under financial stress, having to look after teenage children.   He strongly denied suicidal thoughts.   He reported stopping using Quetiapine six months ago because he was feeling so well.   He had deteriorated somewhat and admitted to heavy THC use, one to two grams daily up until two weeks ago.   

260     It was noted the plaintiff was feeling increasingly agitated, with auditory hallucinations, telling him to act aggressively towards others.   He was insightful to this and able to resist acting out, although he sometimes hit inanimate objects instead.   He was worried he was starting to become unwell, but his general practitioner was unwilling to prescribe any antipsychotics without him having a mental health review.   The plaintiff felt the intensity of the voices decreased when he was referred for help.

261     It was noted the plaintiff did not believe he had ever seen Mental Health Service before and he was not registered on the CMI.   

262     Barwon Heads Mental Health Services reported on 23 May 2008.   It was noted a medical appointment was made with Dr Munib for 26 May 2008 to review the possibility of atypical antipsychotic and anti-depressive therapy.   

263     Dr Munib, Principal Psychiatry Registrar at Corio MHS, wrote to Dr Mathai on 26 May 2008, having seen the plaintiff that day.   The plaintiff had described experiencing irritability and anxiety for the past two months.  The plaintiff’s mood was then dysthymic, congruent and mildly reduced in reactivity with restricted range of affect.    It was noted he had been a habitual user of illicit substances with relative discontinuation about two to three weeks earlier.  The plaintiff mentioned he had used cannabis within the last few days but no other illicit substances.

264     The plaintiff reported details of problems coping with his children and also experiencing intrusive thoughts of a critical and derogatory nature.   He exhibited underlying paranoia and persecutory ideations, but ideations of reference were not identified.  There were vague thoughts of resentment for nonspecific antagonism.  The plaintiff had thoughts about death and dying; however, no suicidality or homicidal thoughts.   He denied any perceptual disturbances.   Insight and judgment were relatively unimpaired as the plaintiff was keen to resume medication for his current symptoms, which he felt distressing.

265     Dr Munib concluded the plaintiff’s presentation was consistent with substance induced psychosis and he was commenced on Paliperidone.

266     Dr Munib considered that drug and alcohol services involvement should be beneficial, subject to the plaintiff’s motivation for illicit substance abstinence.

267     There were further progress notes on 15 July 2008 from Corio MHS, noting the recent accident and the plaintiff not coping thereafter, being tearful, angry and possibly depressed.

268     In a Barwon Health “Adult Psychological Assessment” dated 8 December 2008, it was noted the plaintiff was referred by his partner, Millie, having become increasingly irritable and agitated, complaining of poor sleep, nightmares (being run over, getting shot) and racing thoughts.

269     On 22 December 2008, there was a referral from Dr Mathai to Mrs Dimovski for counselling for PTSD.

270     Dr Mathai noted there was no formal psychiatric history until the plaintiff was seen at the Clinic in May 2008.   Many years ago, he had been treated on antidepressants and until six months ago had been taking Quetiapine (dose unknown).   

271     The plaintiff described a good upbringing but reference was made to a previous assessment where there was mention of his adoptive father being violent.

272     Dr Mathai noted the plaintiff had likely reactive depressive illness secondary to trauma, complicated by co-morbid possible psychotic illness.   He also had poor sleep, increased irritability and verbal aggression, anxiety, and agitation in public situations and flashbacks and anxiety when exposed to reminders of the accident.   Dr Mathai noted the plaintiff had good insight and he was seeking assistance and he wanted to feel better and get control of himself and get on track.   It was noted he had had no substance abuse in the last thirty days.

273     On mental state examination, the plaintiff had stated his mood had been irritable, angry and depressed.   There was some flatness of affect but it was reactive and the plaintiff smiled appropriately.   There was normal rate, rhythm and flow of speech.   The plaintiff was able to articulate himself.   There were some paranoid thoughts – people were out to get him – and many fears of being run over.   Sometimes he stayed at home in fear.   He was not having delusions or obsessions and he had some vague suicidal ideation when feeling stressed, however no active plan.   His memory was good for recent and remote recall and he was grossly intact cognitively and had good insight.

274     Dr Mathai suggested that there be a medication review to address areas of poor sleep and paranoid ideation with an appointment with Dr Aggarwal.

Corio

275     On 18 August 2008, the plaintiff attended Corio for review and was much better.   He was still using a brace plus two crutches and feeling good and seeing an orthopaedic surgeon soon for follow up.   He was happy with Effexor but requested a larger dosage.   It was increased 150 milligrams from 75 milligrams.   Counselling was discussed and the plaintiff agreed to a referral.

276     On 18 December 2008, it was noted the plaintiff had poor sleep and “still back ache +”.   He was given Panamax for pain and told to mobilise his back and was advised to have physiotherapy and counselling.   Panamax and Effexor were prescribed.

277     There were half a dozen attendances in 2009, during which time there was no mention of any back complaint, save for back pain on 5 October 2009 and a prescription of Voltaren.  On 16 September 2009, it was noted the lawyers had requested an MRI of the plaintiff’s lumbar spine 

278     On three attendances in 2010, no mention of any back problems.   

Loganlea

279     The Loganlea records were tendered relating to attendances by the plaintiff between January 2011 and November 2011.   In over a dozen attendances during that period, there was no mention of any complaint by the plaintiff of any problems with his back or PTSD symptoms.   

280     At the end of 2011, the plaintiff attended on two occasions when it was noted his schizophrenia was stable on his current medication.

281     The attendances in 2011 related to diabetes, an update for a prescription for schizophrenia, and a complaint of insomnia. 

282     There was no mention of any painkilling medication in the list prescriptions from February to October 2011.

283     On 23 May 2012, the plaintiff attended Dr Lui at Loganlea.  It was noted his schizophrenia was stable and there were no hallucinations.

Overview

Lumbar Spine

284     There is no dispute that the plaintiff suffered a comminuted burst fracture of the upper endplate of L1 with ultimately a fifty per cent reduction in vertebral body as Dr Campbell described.  

285     In this case, there is no suggestion the plaintiff had any back problems before the accident.

286     The issue for determination is whether any impairment relating to the plaintiff’s lumbar injury is serious and long term.

287     Counsel for the defendant conceded that the plaintiff continues to have some ongoing pain and restriction in his activities but not such that meets the test of seriousness.

Credit of the Plaintiff

288     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (2010) VSCA 69 at paragraph 12

“…..  the weight to be attached to the plaintiff’s account of the pain and suffering experience will of course depend upon an assessment of the plaintiff’s credibility.”

289     Counsel for the defendant submitted the plaintiff’s evidence as to his pre-accident level of functioning could not be relied upon and that any consequences claimed by him did not satisfy the test of seriousness as set out in see Humphries v Poljak (supra).

290     Whilst he took some time in cross examination to concede that immediately prior to the accident he was not fit and healthy as he deposed, the plaintiff ultimately conceded he had significant mental health problems in May 2008, going downhill from earlier in the year after he stopped his medication in late 2007.  He explained however, that after being prescribed a new medication, his condition improved as confirmed by his last pre-accident attendance on 2 June 2008.

291     Whilst the plaintiff had mental health problems, particularly in May 2008 and, to a lesser extent, in the months leading up to that time, there is no suggestion that prior to the accident the plaintiff had any problems with his back or restrictions in relation thereto.  Physically, he was an able bodied thirty seven year old man whose diabetes was under control.  There was no evidence that he did not have a full capacity for work.  He was socialising, going out and looking after his children

292     As counsel for the defendant conceded, despite his psychiatric problems and enormous difficulties, the plaintiff had clearly done a commendable job looking after his family and he had got to a point where he thought he could stop taking medication in late 2007.

293     In these circumstances, I generally accept the plaintiff’s evidence as to his back pain and restriction since the accident.  Significantly, there was no surveillance film or other evidence challenging the plaintiff’s evidence in this regard.  Further, no doctor has found a non-organic component to the plaintiff’s presentation, nor has there been any suggestion of the plaintiff exaggerating his condition on examination. 

294     Whilst I found Millie’s evidence as to the plaintiff’s pre-accident psychiatric history particularly unreliable with her description of her own poor mental health before the accident, I accept her evidence that save for May 2008 when the plaintiff attended Corio, that she and the plaintiff and his two children had a relatively stable relationship, with the plaintiff running an organised household and enjoying a range of activities with his teenage children. 

Consequences

295     As counsel for the defendant conceded, in the four months or so after the accident, the plaintiff’s symptoms were very bad.  Following nine days as an inpatient at the Hospital, the plaintiff required crutches and wore a back brace for about three months.

296     Although some improvement was indicated in the clinical notes towards the end of 2008, the plaintiff reported back pain in December. 

297     Whilst Mr Williams thought the plaintiff had progressed remarkably well as of mid 2009 when he last saw him, he suspected the plaintiff would always experience some discomfort in his back related to the injury which he described as a severe injury of the L1 vertebra. 

298     I accept the plaintiff’s evidence that since the accident, he has woken in the mornings with back stiffness.  His back pain has been constant and nagging, radiating into his hips.  He is subject to flare ups if he does too much and his pain is increased if he tries to do any physical activity.

299     The plaintiff’s continues to have problems with prolonged sitting and standing.  He is unable to walk distances without the need to rest.

300     In the early period following the accident, the plaintiff was prescribed Panadeine Forte.  He was last prescribed medication in October 2009 when Voltaren was prescribed at Corio.

301     I accept that due to his liver and kidney condition and also his concern with addiction given his history of drug use and the fact he has to take medication for diabetes and schizophrenia, the plaintiff is reluctant to take painkilling medication despite his pain.  Further he ceased taking Voltaren as it made him sick and instead he uses a gel on his back. 

302     Whilst there is no mention of any back complaint by the plaintiff in his treating doctor’s notes after October 2009, I accept that the plaintiff has discussed his back condition with his treating doctors at various times whilst attending for unrelated matters but no treatment has been suggested to him.  As Mr O’Brien and Dr Campbell commented, there is no further treatment available to the plaintiff; it is just a matter of avoiding aggravating factors.

303     The consensus of medical opinion is that the plaintiff dos not have a capacity for heavy physical work due to his back condition.  There is no contrary medico-legal opinion relied upon by the defendant.

304     Mr O’Brien considered the plaintiff was certainly incapable of heavy physical work.   In his view, the plaintiff would not be capable of prolonged sitting or undertaking any form of employment.

305     Dr Campbell thought the plaintiff’s lumbar injury alone would prevent him from engaging in any form of manual work, noting the plaintiff had only ever been employed in unskilled manual work

306     Whilst Dr Campbell thought the plaintiff may be able to initially work five or ten hours a week in an unskilled sedentary job with a sympathetic employer and upskill, realistically the plaintiff was not employable.

307     Mr O’Brien thought the plaintiff could not do full and unrestricted work as a tattooist due to nature of persistent spinal pathology, namely discogenic pain secondary to the post-traumatic disruption of T12-L1.  He thought the plaintiff would have problems with prolonged sitting and the concentration required to carry out tattooing – a view shared by Dr Campbell.   

308     Whilst it was conceded the accident had rendered the plaintiff unable to do heavy work, it was submitted by counsel for the defendant this was not a serious consequence when one looked at the role of work in the plaintiff’s life.

309     Counsel for the defendant submitted that the plaintiff had not been in sustained paid employment since he was diagnosed with schizophrenia in 2000.  Since that time, the plaintiff was happy to be in receipt of DSS payments.  It was submitted he was not a person showing any tendency to go out and get work or exploit any earning capacity he then had.

310     However, whilst the plaintiff had been out of the workforce for that time, he did have a capacity to work, as indicated by his history of heavy and unskilled work some years earlier.  He was not required to look for a job whilst in receipt of a sole parents benefit. 

311     I accept that when the plaintiff no longer had to support his children, there was no reason why he would not have sought some work and he had the capacity to do so with his schizophrenia under control. 

312     As a result of his back condition, that option is now not open to the plaintiff and this will be the situation in the long term, as confirmed by both Dr Campbell and Mr O’Brien.

313     I am not satisfied however, that had the plaintiff not been injured he would have successfully set up his own tattooing business and made it into a continuing viable business.

314     Prior to the accident, the plaintiff had the requisite tattooing skills and equipment to establish his own business.  He had a source of finance from his father.  However, the plaintiff had not taken any active steps before the accident in this regard and there was not a firm plan in place.

315     Further, as to the extensive tattooing the plaintiff undertook before the accident, his own evidence was that the tattooing undertaken was not profitable and at times cost him money.

316     I do accept however, that tattooing was the plaintiff’s great love, as confirmed by Millie.  Because of his back injury and, in particular, his problems sitting, he has lost the enjoyment and fulfilment he obtained from tattooing as a hobby.

317     As a result of his back condition, the plaintiff’s activities of daily living have also been interfered with.

318     I accept that prior to the accident, the plaintiff was able to maintain a stable household caring for two teenage children.  He was competent in household tasks and cooking and he was capable of mowing the lawn.

319     Since the accident, the plaintiff’s ability to engage in these tasks has been reduced substantially, with the plaintiff really no longer cooking and requiring assistance initially from his children and in more recent times from Millie to undertake household tasks.

320     Further, the plaintiff is no longer able to engage in physical activities such as bike riding which he enjoyed with his teenage children prior to the accident.  He is unable to run and can no longer go for long walks – activities which he should be able to continue to enjoy as a relatively young man.   

321     As Mr O’Brien described, the plaintiff’s persistent back pain has continued to cause definite permanent restriction of general social domestic and recreational activities.

322     Further, since the accident, the plaintiff has also experienced difficulty with sexual intercourse due to his back pain – a situation which has placed strain on his relationship with Millie.   

323     When considering the seriousness of the plaintiff’s physical impairment, I am also permitted to take into account the expected mental consequences of his injury:  see Winneke P in Richards v Wylie (2000) 1 VR 79.

324     I accept that the plaintiff is depressed and frustrated as a result of his pain and his limitations.  As Dr Epstein described, the plaintiff felt flat most of the time and less sociable, noting his problems with housework, his inability to garden and his increasing lower back pain with activity.  In addition to the plaintiff’s PTSD symptoms, Dr van Ammers reported the plaintiff was unhappy with his predicament.

325     It is very clear from the Loganlea records since late 2010/early 2011, that the plaintiff has been stable on Seroquel and there are no issues at the present time relating to any psychosis or schizophrenia.

326     I reject the submission by counsel for the defendant that there has been little change in the plaintiff’s life since the accident.  In my view, the plaintiff’s situation has been affected dramatically.  He now has a permanent back problem with associated restrictions, in particular, an incapacity for heavy unskilled work and significant interference with his recreational and domestic activities.  These problems were not present before the accident.

327     Taking into account all of the evidence, I am satisfied that the plaintiff has a serious injury in relation to his lumbar spine. 

328     Further, as the plaintiff’s back pain has persisted for in excess of four years without improvement, I accept his impairment in relation thereto is long term.

329     Having made this finding, it is not necessary for me to determine whether the plaintiff has a severe psychiatric impairment pursuant to sub section (c).

330     Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the accident.

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