Mandanici v Transport Accident Commission
[2017] VCC 374
•11 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00579
| FELICE MANDANICI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 February 2017 | |
DATE OF JUDGMENT: | 11 April 2017 | |
CASE MAY BE CITED AS: | Mandanici v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 374 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Aggravation to pre-existing cervical and lumbar spine conditions – psychiatric condition – unrelated medical conditions – disentanglement – pecuniary disadvantage – imminent retirement
Legislation Cited: Transport Accident Act 1986
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading [2016] VSCA 232; R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; Bezzina v Phi [2012] VSCA 161; Hunter v Transport Accident Commission [2005] VSCA 1; Bottomley v Western Health [2015] VCC 643; Acir v Frosster Pty Ltd [2009] VSC 454; Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1
Judgment: Application unsuccessful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr H Mazloum | Nowicki Carbone Lawyers |
| For the Defendant | Mr A Moulds QC with Ms S Manova | Solicitor to the Transport Accident Commission |
HER HONOUR:
Preliminary
1 This is an application to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
2 The plaintiff alleges he suffered injury in a transport accident which occurred on 18 May 2012. At about 5am, the plaintiff was driving his car to his food catering business in Carlton, when another vehicle drove out from a side street, and crashed into the plaintiff’s car (“the transport accident”).
3 Mr Ingram appeared with Mr Mazloum of counsel for the plaintiff and Mr Moulds QC appeared with Ms Manova of counsel for the defendant.
4 The plaintiff claims he suffered injury to his cervical and lumbar spine in the transport accident. The body function said to be lost or impaired is the functioning of his spine. The plaintiff also claims that, as a consequence of the transport accident, he suffered Post-Traumatic Stress Disorder (“PTSD”), major depression and anxiety disorder, which he says constitutes a severe long-term mental or behavioural disturbance or disorder. The application is brought pursuant to sub-sections (a) and (c) of the definition of “serious injury” contained in s93(17) of the Act.
5 Only the plaintiff was called to give evidence, and he was cross-examined. Also in evidence were medical reports and other documents. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
6 The plaintiff is 67 years old. Prior to the transport accident, he suffered some lower back and neck pain, as well as a multitude of unrelated ailments from which he continued to suffer following the transport accident.
7 In determining this case, I must consider the following legal principles:
(i) The plaintiff has the burden of proving, on the balance of probabilities, that the impairment he claims to suffer to his spine and/or his psychiatric condition is serious and long-term, and was caused by the transport accident.
(ii) The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[1]
[1]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [24]
(iii) In assessing if a physical injury is “serious” under paragraph (a), the consequences of the injury must, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[2]Humphries v Poljak [1992] 2 VR 129 at [140]
(iv) In assessing a mental or behavioural disturbance or disorder under paragraph (c), the definition requires the condition to be “severe”. This has been held to be a more significant threshold to satisfy than the test under paragraph (a).[3]
[3]Mobilio v Balliotis [1998] 3 VR 833
(v) I must not take into account the cumulative effect of the plaintiff’s pre-existing lower back and neck injury or the aggravation.[4]
(vii) I must disregard any consequences arising from the plaintiff’s unrelated medical conditions.[5] The onus is on the plaintiff to disentangle such consequences.
[4]Petkovski v Galletti [1994] 1 VR 436
[5]Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading [2016] VSCA 232
8 It is apparent to me that the plaintiff is currently suffering greatly, both physically and psychologically, as a consequence of a multitude of medical conditions. However, my sympathy for his condition cannot be the basis of a favourable determination in this application, and, for the reasons that I will explain below, his application must be dismissed.
9 I ultimately conclude as follows:
(i)as a consequence of the transport accident, the plaintiff suffered aggravation of a pre-existing degenerative condition to his lumbar and cervical spine. However, the plaintiff has failed to satisfy me that the consequences arising from the impairment are at least very considerable.
(ii)as a consequence of the transport accident, the plaintiff suffers a psychiatric condition. However, the plaintiff has failed to satisfy me that the consequences arising from the impairment are severe.
The Plaintiff’s life before the transport accident
10 To assess the impact of the transport accident related injuries upon the plaintiff, it is important to understand how he functioned and enjoyed his life prior to the accident.
11 At the time of the accident, the plaintiff was 62 years old. He lived alone in a retirement village. The plaintiff is divorced and has three adult children, and seven grandchildren.[6]
[6]Plaintiff’s Court Book (“PCB”) 4
12 The plaintiff was born in Italy and moved to Australia in about 1957.[7] He completed Year 11, before undertaking an apprenticeship as a chef. After qualifying, he worked as an employee for several restaurants, including a restaurant he co-owned with his brother.[8]
[7]PCB 3
[8]PCB 4
13 In about 1999, the plaintiff set up his own catering business called Future Foods, which supplied sandwiches and cakes to various cafés. The plaintiff performed the majority of food preparation and cooking duties for the business, as well as promoting the business, liaising with customers and managing the finances.[9]
[9]PCB 4
14 In about 1999, the plaintiff was diagnosed with bowel cancer, for which he required surgery and chemotherapy. He then suffered an incisional hernia, which arose from a complication in the surgery. The plaintiff recovered from the cancer and is now in remission.[10]
[10]PCB 5
15 In about July 2009, the plaintiff suffered a mild heart attack, at which time he was diagnosed as suffering from coronary artery disease.[11]
[11]PCB 5
16 In about 2010, the plaintiff moved into a retirement village, which he was able to purchase through the sale of his family home, together with two investment properties.[12] The plaintiff said that he made friends at the retirement village and enjoyed attending activities there, such as social evenings.[13]
[12]Transcript (“T”) 33, L15-22
[13]PCB 6
17 In about February 2011, the plaintiff attended the Epworth Hospital as a consequence of respiratory failure. He was admitted to the Intensive Care Unit where he was given a tracheotomy.[14] The Epworth Hospital records indicate that at that time, the plaintiff also complained of bitterly swollen legs. When this was put to him in cross-examination, however, the plaintiff said that he could not recall such a complaint.[15]
[14]PCB 5
[15]T 26, L11-20
18 At the time of his admission to the Epworth Hospital, the plaintiff came under the care of physician, Dr Nicholas Radford. He noted that the plaintiff had suffered “quite severe swelling in both legs, to the point where he had difficulty putting on his trousers.”[16] Dr Radford was uncertain as to the cause of the plaintiff’s acute deterioration, but considered it was likely related to his “obesity, a probable obstructive sleep apnoea and chronic hyperventilation.”[17] Dr Radford described the plaintiff’s condition at that time as “an acute life-threatening illness.”[18]
[16]Defendant’s Court Book (“DCB”) 38
[17]DCB 39
[18]DCB 39
19 Following his discharge from hospital, the plaintiff attended his general practitioner, Dr Austin Chow, whose medical record indicated that the plaintiff complained of bilateral foot pain,[19] for which he was prescribed Panadeine Forte.[20]
[19]DCB 107
[20]DCB 108
20 At about that time, the plaintiff was also diagnosed as suffering from sleep apnoea. The plaintiff was provided with a CPAP machine, but said that he did not use it as it made him feel claustrophobic.[21]
[21]PCB 5
21 On 1 April 2011, the plaintiff attended Dr Chow, who assisted him to complete an application for a disability support pension.[22] The plaintiff said this application was successful.[23]
[22]Defendant’s Court Book (“DCB”) 108
[23]T29, L11-13
22 On 5 August 2011, Dr Chow provided a medical certificate in support of the plaintiff’s disability support pension, stating that he was unfit to work from 5 August to 26 September 2011, as a consequence of his sleep apnoea, together with:
“severe pain and swelling in feet
unable to stand/walk for more than a few minutes.”[24]
[24]DCB 60
23 The plaintiff was asked about this certificate in cross-examination. He accepted that the contents of the certificate were correct, but stated that he could still stand for a certain period of time.[25]
[25]T28, L13-15
24 Dr Chow provided further certificates of capacity, which covered the period 31 October 2011 to 31 March 2012, stating that the plaintiff was unfit to work due to severe sleep apnoea.[26] The plaintiff again accepted the contents of those certificates.[27]
[26]DCB 61 and 61a
[27]T32, L5-7
25 The plaintiff acknowledged that, during the period in which he obtained medical certificates from Dr Chow, he received Centrelink benefits, which were referred to in his 2011[28] and 2012 tax returns.[29] The plaintiff’s taxation return for the 2011 financial year indicated that he received an income of $5,415 from his Future Foods business.[30] The plaintiff’s taxation return for the 2012 financial year indicated that his only income was derived from Centrelink benefits.[31]
[28]T29, L21-23
[29]T32, L8-11
[30]DCB 128
[31]DCB 145
26 The plaintiff has had longstanding difficulties associated with excessive weight. On 25 October 2011, Dr Chow recorded the plaintiff’s weight at 130 kilograms, and noted that it had increased a total of 14 kilograms over the previous six months.[32] Prior to the transport accident, the plaintiff’s weight was last recorded on 13 January 2012, at which time he was recorded as weighing 132 kilograms.[33] At that time, Dr Chow recommended that the plaintiff attend a life course in order to assist with weight reduction. However, the plaintiff said he could not recall attending any such course.[34]
[32]DCB 110
[33]DCB 113
[34]DCB 113 and T23, L10
27 The plaintiff also suffered high blood pressure and high cholesterol, which he managed by taking Coversyl and Lipitor on a daily basis.[35]
[35]PCB 5
28 The plaintiff also continued to receive regular prescriptions for Panadeine Forte.[36]
[36]DCB 109-114
29 The plaintiff acknowledged that, prior to the transport accident, he suffered occasional soreness in his neck.[37] He also acknowledged that he had previously suffered from lower back pain, which he attributed to his being overweight and the nature of the duties he had performed as a chef.[38] The only record of such pain in the tendered material was on 13 January 2012, when Dr Chow noted that the plaintiff had attended with occasional mild lower back pain in the last few weeks.[39]
[37]PCB 9
[38]T49, L20-26
[39]DCB 113
30 Prior to the transport accident, the plaintiff said that he was living by himself in his retirement unit, and that he undertook all of the cooking, cleaning and shopping tasks independently.[40]
[40]PCB 5
31 In addition, the plaintiff said that he had taken on a more supervisory role at work, as his pre-existing health conditions were such that he was finding it difficult to perform his duties.[41] The plaintiff said that it had been his intention to sell his business, so as to enable him to transition to full retirement.[42]
[41]PCB 16
[42]PCB 16
32 In his first affidavit, the plaintiff said that he was in receipt of Centrelink Newstart payments at the time of the transport accident.[43] Prior to the transport accident, the plaintiff had been certified as being unfit for all work until 31 March 2012. From this time, until the time of the transport accident, however, the plaintiff said that he was working 50 to 60 hours a week in his business,[44] and that he was driving to his business at the time the transport accident occurred.[45]
[43]PCB 5
[44]T58, L4-5
[45]T58, L2-3
33 Prior to the transport accident, the plaintiff said that one of his main hobbies was playing golf, and that he would play about two times per week at the Kooringal Altona Golf Club, and about once a month with the social club.[46] He said he was able to stand and walk for prolonged periods of time despite his pre-existing oedema.[47] However in cross-examination, the plaintiff accepted that from 2006 onwards, his physical condition had restricted his ability to play golf as frequently, and that since then, he had not carried a handicap, as he played less often.[48] The plaintiff also said he would use a golf cart unless he was playing a flat course.[49]
[46]PCB 6
[47]PCB 6
[48]T48, L1-9
[49]T48, L18-28
What the plaintiff says about his injuries and their consequences to him
34 The transport accident occurred at about 5am on 18 May 2012, when the plaintiff was driving to his catering business in Carlton. The plaintiff recalled that it was a significant collision, in that his car became airborne, the airbags were deployed, and both vehicles caught fire.[50] He said that he struggled to get out of the vehicle, and that while he eventually managed to, he found it a frightening experience.[51]
[50]PCB 65
[51]PCB 6
35 Following the transport accident the plaintiff initially attended his business, but soon after was taken by his son to the Royal Melbourne Hospital. Numerous CT scans were then taken of the plaintiff’s lumbar and cervical spine. No abnormalities were noted in respect of the plaintiff’s lumbar spine, but moderately severe degenerative changes were noted in his lower cervical spine.[52]
[52]PCB 32
36 On 21 May 2012, the plaintiff consulted Dr Chow in relation to the injuries he had suffered in the transport accident. Dr Chow noted that the plaintiff complained of lower back pain, together with severe bruising across his abdomen.[53]
[53]PCB 33 and DCB 114
37 On 7 June 2012, the plaintiff again consulted Dr Chow, who recorded that the plaintiff was feeling overwhelmed as a result of the transport accident, and that he suffered nightmares and flashbacks. Dr Chow also noted that the plaintiff’s “injuries were slowly getting better but still gets various aches.”[54]
[54]DCB 114
38 At that time, Dr Chow considered that the plaintiff had developed symptoms consistent with post-traumatic stress, and therefore arranged for him to receive counselling from psychologist, Mr Rob Russell.[55] The plaintiff said he consulted Mr Russell about seven times, before ceasing such treatment in approximately November 2012, as he did not find it to be useful.[56]
[55]PCB 33
[56]PCB 7
39 On 13 July 2012, the plaintiff attended Dr Chow’s clinic and was seen by a nurse. The medical record indicated that the plaintiff obtained a referral to osteopath, Mr Matthew Dere, in relation to his back pain.[57] The plaintiff said that he consulted Mr Dere on approximately six occasions, during which time he learnt exercises for his lower back and neck that he could perform at home.[58]
[57]DCB 116
[58]PCB 7
40 On 20 July 2012 the plaintiff attended Dr Chow, at which time it was noted that the plaintiff was suffering worsening oedema of his lower limbs, and that he found it hard to exercise due to the oedema and burning in his feet.[59]
[59]DCB 116
41 On 3 August 2012, the plaintiff again consulted Dr Chow, who noted that the plaintiff continued to complain of ongoing burning in his feet. In addition, he recorded that the plaintiff was taking three Panadeine Forte a day and that it was “not working any more”.[60] At that time, Dr Chow recommended that the plaintiff trial the use of Tramadol medication. There is no mention in this clinical record of the plaintiff complaining of any lower back or neck pain.[61]
[60]DCB 117
[61]DCB 117
42 In his medical report dated 18 December 2012, Dr Chow made no reference to the plaintiff’s lower back or neck pain, beyond the initial reference to lower back pain immediately following the transport accident. He instead stated that the plaintiff had suffered ongoing abdominal tenderness, which had subsequently resulted in the diagnosis of a hernia, for which surgery was recommended.[62] Dr Chow also noted that the plaintiff continued to suffer post-traumatic stress, consistent with the transport accident. Dr Chow was of the opinion that the plaintiff was unable to resume his duties as chef and business owner, “partially due to pain and stress related to his injuries.”[63] Dr Chow also acknowledged the other unrelated medical conditions including the plaintiff’s excessive weight and the swelling and pain in his feet.[64]
[62]PCB 33
[63]PCB 33-34
[64]PCB 33-34
43 The plaintiff was asked about the absence of recorded complaints in Dr Chow’s clinical notes from July 2012 until August 2013. In cross-examination, the plaintiff initially said that he thought “perhaps the painkillers were killing the pain and I just didn’t have it.”[65] In re-examination, the plaintiff later said that he believed he had made complaints to Dr Chow during that time.[66]
[65]T 37, L13-15
[66]T58, L15-19
44 In February 2013, the plaintiff sold his catering business to chefs associated with the Australian Tennis Open, as he had previously supplied food to them. He said that they trialled the business for a two-week period and then proceeded to purchase it.[67]
[67]T 57, L7-14
45 The plaintiff said that after the transport accident, he had to hire a manager and chef to help run his business.[68] However, in re-examination the plaintiff stated that he was still working for the business at the time it was sold.[69]
[68]T 28, L14-15
[69]T 57, L18-22
46 In about July 2013, the plaintiff commenced seeing a new general practitioner, Dr Bruce Samuels, as his medical practice was closer to the plaintiff’s home.[70]
[70]PCB 8
47 In August 2013, Dr Chow referred the plaintiff to psychiatrist, Dr Peter Farnbach, as he continued to suffer symptoms consistent with post-traumatic stress. In his report dated 29 August 2013, Dr Farnbach stated that he considered the plaintiff’s primary psychiatric problem related to PTSD. He noted that the plaintiff suffered nightmares and very frequent flashbacks, together with lowered mood and significant suicidal thoughts.[71] Dr Farnbach recommended that the plaintiff be prescribed Duloxetine medication, together with inpatient management.[72] The plaintiff said that Dr Chow did not prescribe the recommended medication, and that he himself wanted to avoid an inpatient admission to a psychiatric hospital.[73]
[71]PCB 35
[72]PCB 35-36
[73]PCB 20
48 In September 2013, the plaintiff was referred to pain management specialist, Dr Kevin Young. Dr Young noted that the plaintiff had suffered chronic lower back and cervical pain since the transport accident in 2011, but that he felt such pain was “somewhat manageable”.[74] Dr Young noted that the plaintiff’s main concern at that time was “burning dysesthesia in his bilateral lower limbs peripherally and paraesthesia of his hands.”[75] It was noted the severity of such symptoms was seven to ten, out of ten. Dr Young recommended medication, as well as a pain-management program to assist the plaintiff in his rehabilitation.[76]
[74]DCB 42
[75]DCB 43
[76]DCB 43
49 At about the same time, the plaintiff was assessed at the Epworth Sleep Centre, where it was noted that his sleep was primarily affected due to “lower limb and hand pain”.[77] The plaintiff agreed with the contents of this record when it was put to him in cross-examination.[78]
[77]DCB 44
[78]T41, L15-19
50 In March 2014, the plaintiff underwent surgery to repair his abdominal wall hernias.[79] The surgery, performed by Mr Bui, ultimately failed, such that a further procedure was required.[80]
[79]PCB 8
[80]PCB 8
51 In April 2014, the plaintiff was referred to rheumatologist, Dr Geoff Markov, who noted that the plaintiff complained of pain and swelling in his right wrist, hand and fingers. Dr Markov diagnosed acute pseudogout, before he then administered a steroid injection to the plaintiff and prescribed Celebrex medication for his pain.[81]
[81]DCB 47 and PCB 8
52 In September 2015, the plaintiff was reviewed by respiratory and sleep disorder physician, Dr Jeremy Goldin. Dr Goldin noted the plaintiff’s multiple comorbidities and considered that his obesity was the likely cause of the sleep apnoea and hyperventilation syndrome.[82]
[82]DCB 54
53 The plaintiff said that after being diagnosed with diabetes, he managed to alter his diet, such that he lost a significant amount of weight.[83] However, he subsequently regained a considerable amount of weight and ultimately underwent gastric bypass surgery in 2016.[84]
[83]PCB 17
[84]T27, L21-22
54 In mid-2016, the plaintiff developed cellulitis in his left leg and was ultimately admitted to hospital. During his admission, which included a visit in the ICU, the plaintiff’s weight reduced from 150 kilograms to 135 kilograms.[85]
[85]DCB 57
55 Over the last one to two years, the plaintiff has experienced worsening troubles in both of his knees such that he was referred by Dr Samuels to orthopaedic surgeon, Mr Rob Howells. In November 2016, Mr Howells noted that the pain in the plaintiff’s knees was “fairly constant and brought on by walking even short distances.”[86] It was recommended that the plaintiff undergo bilateral knee replacement surgery.[87]
[86]DCB 59
[87]DCB 59
56 The plaintiff said that he is now limited in the tasks he can perform around his home, including cooking and cleaning.[88] He stated that in “the last five or six months” a lady from Mecwacare “comes and does my cleaning and vacuuming and all the domestic chores”.[89] A lady he previously employed in his business, has been helping with the shopping for “the last year or so.”[90] In addition, his sister and daughter-in-law help him in his home. The plaintiff initially said his family “have always been there”.[91] However, he later said that it was only in the last four to six months that they had done the majority of cooking for him .[92]
[88]PCB 10-11
[89]T52, L13-16
[90]T 53, L3
[91]T 52, 13
[92]T 55, L23-31, T 56, L1
57 The plaintiff said that he is now not as social as he used to be.[93] He acknowledged this was due to a multitude of his injuries, but said that it was due predominantly to him feeling too embarrassed to go out given his current weight, difficulties walking and also his mental health.[94]
[93]PCB 11
[94]T49, L7; T51, L19-23
58 The plaintiff said that his neck and lower back pain make it difficult for him to sit for too long. When he attends social events at the retirement village, the plaintiff said he has to get up continuously.[95] The plaintiff said he still goes to his grandchildren’s birthday parties and concerts, but does not make it to all of them.[96] Further, for the past two years, the plaintiff has not been able to go with his family to a restaurant for Christmas lunch.[97]
[95]T 50, L 26-31
[96]T 53, L 12-16
[97]T 56, L4-8
59 The plaintiff said that after the accident, he had played golf approximately once a fortnight, but that he had stopped playing in the last three years.[98] In re‑examination, the plaintiff said that he had stopped playing golf in the last three years as he “just couldn’t manage anymore physically”[99]and referred specifically to his back and neck.[100]
[98]T59, L25-28
[99]T59, L29
[100]T59, L30-31
60 The plaintiff said that his neck and back pain is present all the time, and that, of all the pain he experiences, this is the worst.[101] He said it is aggravated by activities requiring prolonged sitting or standing, or repetitive or awkward bending, twisting or lifting movements.[102] In re-examination, the plaintiff said that his lower back pain is eight out of ten, and that his neck pain is five out of ten.[103] As a consequence of this pain, the plaintiff suffers from interrupted sleep.[104]
[101]PCB 18
[102]PCB 18
[103]T59, L17-20
[104]PCB 12
61 The plaintiff takes a range of medications, some of which were prescribed prior to the transport accident, and some of which he commenced taking after the transport accident. Such medication includes prescriptions for Lyrica and Tramadol, as well as Norspan patches.[105] The plaintiff also takes Endep antidepressant medication.[106]
[105]PCB 18
[106]PCB 19
62 The plaintiff said that his car has clocked up about 8,000 kilometres in the last year, predominantly with him as the driver.[107] He said that such driving is mostly to the local shops, and that he will sometimes pick up his grandchildren from school, a couple of times a week.[108] In cross-examination, the plaintiff conceded he now finds it harder to drive, as he has two knees that need to be replaced, and legs that give him real trouble.[109]
[107]T46, L29, T 50, L13-14
[108]T47, L20-26
[109]T47, L20-23
63 In addition to the physical impairment from which he suffers, the plaintiff stated that he continues to suffer symptoms of PTSD and depression.[110] He stated that, at times, he feels suicidal,[111] that his sleep is interrupted and that he feels frightened when in a car.[112]
[110]PCB 13
[111]PCB 12
[112]T46, L31, T47, L1
64 The plaintiff accepted that his mental state is affected by his lack of mobility and physical appearance.[113]
[113]T 49, L 12-14
65 In support of his application, the plaintiff also tendered affidavits from his sister, Ms Maria Borzillo, and his daughter-in-law, Ms Gina Mandanici. Both affidavits detailed the care they provide to the plaintiff as a consequence of his neck, back and knee pain. I note that in Ms Borzillo’ affidavit sworn 9 January 2017, she described the plaintiff as being “healthy and capable before the accident”,[114] a “healthy businessman”,[115] and someone who “was in reasonable health prior to the accident”.[116]
[114]PCB 22
[115]PCB 22
[116]PCB 23
66 I also note that in Ms Mandanici’s affidavit sworn 18 January 2017, she deposed that whatever health issues the plaintiff might have had before the accident, “they did not stop his activities”[117] including bike riding.[118]
[117]PCB 27
[118]PCB 26
Medical evidence
67 The plaintiff’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Garry Grossbard, on four occasions between November 2012 and December 2016. In his first report, dated 22 November 2012, Mr Grossbard noted that the plaintiff complained that his neck and back pain had become increasingly more severe in the months following the transport accident.[119] He considered that the plaintiff had suffered soft tissue injuries to his neck and lower back, and noted there was no evidence of major pre-existing degenerative disease. Mr Grossbard considered that “much of this man’s incapacity relates to his abdominal shape.”[120]
[119]PCB 44
[120]PCB 45
68 In his report dated 29 November 2013, Mr Grossbard confirmed his opinion that the plaintiff has suffered soft tissue injuries to his cervical and lumbar spine in the presence of underlying pre-existing degenerative change. He considered that the plaintiff’s soft tissue injuries had been significantly complicated by the plaintiff’s psychological condition.[121]
[121]PCB 47
69 In his report dated 12 January 2015, Mr Grossbard noted that the plaintiff’s neck pain was present only when turning his head to the right, and not during normal activity.[122] In cross-examination, the plaintiff accepted that this was a correct history.[123]
[122]PCB 49
[123]T59, L15-16
70 Mr Grossbard noted that whilst the plaintiff’s neck pain had largely settled down, he suffered more constant lower back pain.[124] He also noted that the plaintiff had developed bilateral knee osteoarthritis, which he considered to be unrelated to the transport accident.[125] Mr Grossbard concluded that, as a consequence of his lower back injury, as well as “the unrelated pathologies of significant abdominal hernia and bilateral knee osteoarthritis,”[126] the plaintiff was unable to return to any form of active employment.
[124]PCB 49
[125]PCB 49
[126]PCB 50
71 In his final report dated 19 December 2016, Mr Grossbard noted that there had been no change in respect of the plaintiff’s neck condition, and that he was still suffering constant lower back pain.[127] At that time, the plaintiff’s weight was recorded at 142 kilograms. Mr Grossbard confirmed his opinion that, as a consequence of the transport accident, the plaintiff was continuing to suffer from soft tissue injuries to his neck and lumbar spine. He noted that the plaintiff’s situation was complicated by “fairly significant comorbidities”.[128]
[127]PCB 51
[128]PCB 52
72 The plaintiff’s solicitors also arranged for the plaintiff to be examined by vascular surgeon, Mr Kenneth Myers, in June 2015 and October 2016. In his first report, Mr Myers noted that the plaintiff had denied suffering any significant disability prior to the transport accident, but said that he had been persistently disabled ever since.[129] Mr Myers considered that, as a consequence of the transport accident, the plaintiff suffered aggravation of pre-existing degenerative disease in the cervical and lumbar spine.[130] He was of the opinion that the pain in the plaintiff’s right wrist and right knee were not related to the motor vehicle accident.[131]
[129]PCB 54
[130]PCB 56
[131]PCB 56
73 Mr Myers then reviewed the plaintiff in October 2016, at which time he considered all problems associated with the plaintiff’s spine, as well as his knees, to be a result of the transport accident.[132] Mr Myers did not explain the basis upon which he had changed his opinion, nor elaborate on the reasons for which he now considered the plaintiff’s knee injury to relate to the transport accident.
[132]PCB 61
74 The plaintiff’s solicitors also arranged for the plaintiff to be examined by psychiatrist, Associate Professor Nick Paoletti, in November 2012 and August 2016. In his first report, dated 10 April 2013, Associate Professor Paoletti diagnosed the plaintiff as suffering from PTSD, depressive disorder and anxiety disorder.[133] At that time, he did not consider the plaintiff’s condition to have stabilised, as he thought it necessary the plaintiff see a psychiatrist and trial an antidepressant medication.[134]
[133]PCB 71
[134]PCB 72
75 In his subsequent report dated 30 August 2016, Associate Professor Paoletti again diagnosed the plaintiff as suffering PTSD, together with unspecified depressive disorder and unspecified anxiety disorder. He considered the transport accident to be a significant contributing factor to his psychiatric condition, in part because of the circumstances of the accident, and in part because of the physical problems it had caused him.[135] Associate Professor Paoletti noted that the plaintiff had trialled some antidepressant medication, and recommended that the plaintiff use a major tranquiliser or antipsychotic medication to reduce his symptoms of PTSD.[136]
[135]PCB 84
[136]PCB 86
76 The defendant arranged for the plaintiff to be examined by specialist in occupational medicine, Dr Bruce Hocking, on 19 December 2013. Dr Hocking obtained a history from the plaintiff that, following the transport accident, his weight had increased from 90 kilograms to 147 kilograms, following which he had gone on a diet, eventually reducing his weight to 120 kilograms.[137] It was immediately apparent to me that such a history was inconsistent with the clinical records of Dr Chow prior to the transport accident.[138] Dr Hocking ultimately concluded that, as a consequence of the transport accident, the plaintiff had suffered soft tissue injuries to his neck and lower back, as well as severe PTSD.[139]
[137]DCB 2
[138]DCB 107
[139]DCB 5
77 The defendant also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Paul Kierce, in January 2017. In his report dated 9 January 2017, Mr Kierce stated that, in his opinion, as a consequence of the transport accident, the plaintiff had suffered exacerbation of his cervical spondylosis, as well as a soft tissue injury to his lumbar spine. However, Mr Kierce was of the opinion that the plaintiff’s symptoms are now due mainly to the constitutional degenerative changes in his cervical spine, and to his morbid obesity then affecting his lower back.[140]
[140]DCB 25
78 Mr Kierce noted that the plaintiff complained of pain in the whole of his spine including the neck, dorsal spine and lower back. He also noted that the plaintiff complained of bilateral numbness in his lower legs as well as bilateral pins and needles in his hands.[141]
[141]PCB 28
79 The defendant also arranged for the plaintiff to be examined by psychiatrist, Associate Professor Peter Doherty, in November 2016. In his report dated 14 December 2016, Associate Professor Doherty detailed the plaintiff’s complaints, including that he experiences difficulties when driving, as he panics a lot.[142] Associate Professor Doherty was of the opinion that, while the plaintiff had an acute distress disorder immediately following the transport accident, the symptoms and behaviours were not so sufficient as to warrant a diagnosis of PTSD at that time.[143] He did, however, accept that the plaintiff has symptoms which demonstrate him to be suffering an adjustment disorder with anxiety and some features of traumatisation. He considered the plaintiff’s prognosis was good.[144]
[142]DCB 14
[143]DCB 16
[144]DCB 16
Plaintiff’s reliability as a witness
80 The plaintiff has suffered a myriad of medical problems, over an extensive period of time. The plaintiff often gave evidence inconsistent with the contemporaneous medical records. Whilst I do not consider the plaintiff was intentionally dishonest, I do have significant reservations as to his reliability as a witness. Whilst not intended to constitute an exhaustive list, the following is an example of inconsistences that I could not reconcile on the evidence before me.
81 In his first affidavit, the plaintiff revealed a multitude of past medical problems. However, I do not consider him to have adequately detailed the extent of his disability prior to the transport accident. In particular, I consider the plaintiff to have overstated the amount of golf that he was playing. He failed to adequately detail the severity of the symptoms he was suffering in his legs. In addition, I note that the plaintiff’s affidavit suggested that he had only been prescribed Panadeine Forte following the transport accident, in circumstances in which the medical records indicated that Dr Chow had consistently prescribed Panadeine Forte for the plaintiff since March 2011.[145]
[145]DCB 107
82 I appreciate that it is now difficult for the plaintiff to recall the extensive number of serious medical complaints he has suffered, since at least 1999, as well as the treatment he has received and the consequences he has suffered. For example, the plaintiff was unable to recall having suffered severe swelling and constant pain in his legs when he was admitted to the Epworth Hospital in 2011,[146] notwithstanding the contemporaneous medical records which demonstrated this to be the situation at the time.
[146]T26, L11-20
83 I also do not accept the plaintiff’s evidence that after the transport accident he continued to complain to Dr Chow of lower back and neck pain. In cross-examination, the plaintiff could provide no explanation as to the absence of such complaints in Dr Chow’s clinical notes.[147] I consider Dr Chow’s records to be relatively detailed, and I consider the absence of any recorded complaints of lower back and neck pain to more accurately reflect that the plaintiff’s pain was not as bad as he now claims.
[147]T37, L3-5
84 There was a great deal of conflicting evidence in relation to the plaintiff’s involvement in his business, both prior to and subsequent to the transport accident. Until about six weeks prior to the transport accident, the medical certificates demonstrated that the plaintiff had been incapacitated for all work.[148] However, there is no evidence as to who ran the business during that time, or, if employees were hired, whether they were hired on a full-time or casual basis.
[148]DCB 61A
85 In his first affidavit the plaintiff stated that he was in receipt of a Centrelink benefit at the time of the accident.[149] In his second affidavit, the plaintiff said that he had “scaled back”[150] the business at the time of the accident. In re‑examination, however, the plaintiff claimed that he was working 50-60 hours per week at the time of the transport accident.[151] In considering his affidavit evidence, together with his prolonged incapacity for work throughout most of the year prior to the transport accident, I consider it highly unlikely that the plaintiff was working this number of hours at the time of the accident.
[149]PCB 5
[150]PCB 16
[151]T58, L4-5
86 The plaintiff claimed that, after the transport accident, he hired a cook and manager for the business,[152] but said that he was also still working at the time it was sold.[153] This is a further inconsistency that I could not reconcile on the evidence before me.
[152]T28, L14-15
[153]T33, L6-8
Aggravation to the plaintiff’s spine
87 The plaintiff claims that the impairment to his spine, encompassing his lower back and neck pain, is such that he suffers serious consequences.
88 The plaintiff claims that the transport accident aggravated degenerative changes in his lumbar and cervical spine, which were largely asymptomatic prior to the transport accident. In assessing his application in respect of his spinal impairment, there must be a comparison between the plaintiff’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[154] I must consider only the consequences arising from the aggravation.
[154][1994] 1 VR 436
89 In R J Gilbertsons Pty Ltd v Skorsis,[155] Chernov JA summarised the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a “serious injury”, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”[156]
[155][2000] VSCA 51
[156]Ibid at [40]
90 The defendant referred me to the Court of Appeal decision in Bezzina v Phi,[157] in which it was stated that, when examining the consequences of the claimed serious injury, the Court must look at how a pre-existing condition affected the plaintiff as he was, and would likely have been, absent the injuries sustained in the accident. This included looking at and considering the effect, and likely future effect, of the applicant’s pre-existing injuries and excluding those from the current assessment.
[157][2012] VSCA 161 at [23]
91 I note that in Bezzina, the plaintiff was unable to work as a consequence of a prior neck injury. In assessing whether the subsequent transport accident had caused a serious injury to his neck, the trial judge considered that there were no significant restrictions beyond the pre-existing condition. This fact situation differs greatly from that of the present case, where the degenerative changes in the plaintiff’s spine were largely asymptomatic prior to the transport accident.
92 I am satisfied that, prior to the transport accident, the plaintiff’s lower back and neck pain was only occasional and did not result in any ongoing interference with his work or his domestic or recreational activities. Therefore, in considering this application, I can consider the totality of the plaintiff’s lower back and neck pain.
Pecuniary disadvantage
93 The plaintiff submitted that, if I am satisfied that he ceased work as a consequence of the transport accident, then the plaintiff has demonstrated the requisite pecuniary disadvantage, such that I can be satisfied he has suffered very considerable consequences.
94 Mr Ingram referred me to the Court of Appeal decision in Hunter v Transport Accident Commission,[158] to support his submission that the size of the plaintiff’s income loss was not as significant as the fact of the loss of earning capacity itself.[159] In that case, the plaintiff claimed that her transport accident related injuries prevented her working full-time as a school teacher. The plaintiff was 44 years of age, and had earned $37,546 in the year prior to the transport accident. Following the accident, the plaintiff had earned varying amounts, but no more than $16,917 per annum. At the time of the hearing, the plaintiff was working part-time hours in a bookstore.
[158][2005] VSCA 1
[159]Ibid
95 In Hunter’s case, the pecuniary disadvantage to the plaintiff was ongoing, whereas in this case, the pecuniary disadvantage to the plaintiff must be seen as, if anything temporary, given the plaintiff earned no income from the business in the year of the transport accident, and given his imminent retirement.
96 I am not aware of any authority in which a Court has considered the effect of a plaintiff’s intended imminent retirement, upon the assessment of a serious injury application based upon pecuniary disadvantage.
97 In Bottomley v Western Health,[160] his Honour Judge Carmody considered a serious injury application under the Accident Compensation Act 1985. In that case, the defendant contended that, prior to the subject accident, the plaintiff had intended to retire six months after the time when the injury subsequently occurred. However, the plaintiff gave evidence that her intention had been to keep working as a nurse, until she had reached 20 years of service. This would have been almost four years after the work injury. Carmody J accepted the plaintiff’s evidence, and held that her loss of ability to work in her chosen career had very significant consequences for her.[161] He ultimately granted the plaintiff leave to commence proceedings for both pain and suffering and loss of earning capacity damages.
[160][2015] VCC 643
[161]Ibid at [20]
98 Unlike Bottomley, the plaintiff’s evidence in this case was clear. At the time of the transport accident, his intention was to shortly retire – he had moved to a retirement village and his working duties had wound down by virtue of his comorbidities. Although I accept the plaintiff had not entered into any negotiations to sell the business, he conceded in cross-examination that he “was trying to sell it”[162] in the period prior to the transport accident.
[162]T32, L24-31
99 I am satisfied the plaintiff’s retirement was imminent and would have occurred in or about February 2013, irrespective of the transport accident. Therefore, I am not satisfied that the plaintiff suffered pecuniary disadvantage that was either serious or long-term. In assessing the plaintiff’s application, I must now look at his pain and suffering consequences, and consider whether they are, at least, very considerable. As part of that assessment, I will also consider the plaintiff’s loss of career as a chef, which is a separate matter to his pecuniary disadvantage.
Is the plaintiff’s bilateral knee injury related to the transport accident?
100 The plaintiff claimed that his lower back pain had caused him to alter his gait, which had consequently resulted in aggravation of degenerative changes in his knees, for which he now requires bilateral knee replacements. The plaintiff submitted that if I were to be satisfied that the plaintiff’s lower back injury was a cause of his current knee injury, it would follow that he could then rely upon those consequences as part of his lower back injury claim.
101 However, there is a paucity of evidence to support such a causal relationship. Mr Myers, in his second report, is the only doctor to state that the plaintiff’s knee injury relates to the transport accident. I note, however, that in his first report Mr Myers did not consider the plaintiff’s knee injury to relate to the transport accident, and he offered no explanation as to his change of opinion.
102 The other doctors consider the plaintiff’s knee injury to be unrelated to the transport accident, and are of the opinion it is most likely related to the plaintiff’s excessive weight and possibly the work duties he undertook as a chef.
103 In such circumstances, I am not satisfied that the plaintiff’s bilateral knee injury is related to the plaintiff’s altered gait, and will therefore disregard it when considering the consequences of the plaintiff’s impairment of the spine.
Pain and suffering consequences
104 In Haden Engineering Pty Ltd v McKinnon,[163] Maxwell P said:
[163][2010] 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”[164]
[164]Ibid at [9]-[12]
105 In assessing the pain and suffering consequences arising from the impairment to the plaintiff’s spine, I must compare the plaintiff’s state prior to the transport accident with his current state, whilst disregarding consequences arising from other unrelated impairments.
106 In considering all of the evidence before me, I am satisfied that, prior to the transport accident:
– the plaintiff suffered occasional lower back and neck pain, but it did not cause him ongoing restrictions or pain;
– the plaintiff suffered ongoing and significant pain in his lower limbs;
– the plaintiff was grossly overweight, with his last recorded weight being 132 kilograms;
– the plaintiff suffered sleep apnoea, together with coronary artery disease, high blood pressure, and respiratory problems;
– the plaintiff received regular prescriptions of Panadeine Forte, as well as other medications for his comorbidities;
– in the financial year of the transport accident, the plaintiff had not worked for at least six months as a consequence of his lower limb pain and/or sleep apnoea,[165] although I accept that he was driving to work on the day of the transport accident;
[165]DCB 60, 61, 61a
– the plaintiff was living independently at home;
– as a consequence of his physical restrictions, the plaintiff played golf less often than he had prior to 2006, he no longer had a handicap, and he would use a golf cart if not on a flat course;
– the plaintiff would socialise with his family and at his retirement village.
107 Immediately following the transport accident, the plaintiff complained to Dr Chow of lower back pain.[166] However, save for one referral to an osteopath in July 2012 for back pain, there is no further mention of lower back pain in Dr Chow’s notes, nor any mention at all of neck pain. Instead, Dr Chow’s records and medical reports focus on the plaintiff suffering lower limb pain and requiring hernia surgery. Given the frequency with which the plaintiff attended Dr Chow in the 12 months following the transport accident, I consider the lack of recorded complaints in relation to lower back pain to be inconsistent with the plaintiff’s claim that his pain has been ongoing since that time.
[166]DCB 114
108 In the years following the transport accident, the plaintiff received medical treatment primarily in relation to his lower limb and hand pain, cellulitis, sleep apnoea, respiratory problems, hernia repair, weight gain and gastric banding. The plaintiff acknowledged that some of these conditions were life threatening and have required him to be hospitalised on a number of occasions.[167]
[167]T42, L8
109 In the last 12 to 24 months, to further complicate matters for the plaintiff, he has developed unrelated problems with his knees. His condition is worsening, such that he now uses a walking stick to move around. The plaintiff is now waiting to undergo bilateral knee replacement surgery.[168]
[168]T43, L21-22
110 In considering all of the evidence, I am of the opinion that the plaintiff’s bilateral knee injury is the predominant cause of much of his current incapacity. In cross-examination, the plaintiff said that after the transport accident he was still able to play golf every couple of weeks, but that he had not played now for a few years.[169] The plaintiff also said that he stopped growing his own vegetables about two years ago.[170] He said that he has only required help from his family in relation to cooking in the last four to six months, that he has only required help with cleaning, as provided by Mecwacare, in the last five to six months, and that he has only required the assistance of a lady to help him with the shopping in the last twelve months. The plaintiff’s increasing reliance on the assistance of others to undertake such activities corresponds in time with the worsening of his bilateral knee pain.
[169]T59, L25-28
[170]PCB 19
111 Dr Young noted that in September 2013, the plaintiff considered his lower back and neck pain to be manageable. At that time, the plaintiff described his lower limb and hand pain as being seven to ten, out of ten. [171]
[171]DCB 43
112 I note that the plaintiff claims that his lower back pain is now eight out of ten, and that his neck pain is now five out of ten.[172] It is hard to reconcile this account of pain with Dr Young’s report of September 2013. Given my concerns regarding the plaintiff’s reliability, I prefer Dr Young’s account.
[172]T59, L18-20
113 Further, save for a referral for six sessions of osteotherapy in July 2012, the plaintiff has not sought any specific treatment for his lower back and neck pain.
114 In his most recent report, Dr Samuels referred to the plaintiff as suffering chronic back and neck pain, whilst also referring to a multitude of comorbidities. When listing the plaintiff’s current medications, Dr Samuels did not state which, if any, were prescribed for the plaintiff’s lower back and neck pain.[173]
[173]PCB 40-42
115 There is no clear evidence to distinguish that medication the plaintiff has required for his lower back and neck pain, from that he has required for his other health conditions. In particular, there is no direct evidence as to the medical condition for which Lyrica has been prescribed.
116 I accept that cooking was the plaintiff’s chosen career, and it was also his passion. I accept that cooking is an activity he can no longer perform. However, the plaintiff had been restricted in the cooking he could do prior to the transport accident, due to his foot pain and sleep apnoea. The plaintiff also conceded that it was only in the last four to six months that he has relied upon his sister and daughter-in-law to cook meals for him. Given the transport accident occurred almost five years ago, I consider this change in circumstances is more likely due to the plaintiff’s increasing knee pain, than to his lower back and neck pain.
117 I accept that the plaintiff suffers some pain and discomfort in his lower back and neck, but, for the reasons detailed above, I am not satisfied that it is as constant or as intense as he claims. I consider my finding is supported by the evidence of the plaintiff’s treating doctors.
118 I am not satisfied that the plaintiff’s sleep has been significantly affected as a result of the transport accident. Prior to the transport accident, Dr Chow had certified the plaintiff as suffering severe sleep apnoea, which rendered him unfit for work in late 2011 and early 2012.[174]. When cross-examined on the consequences of his sleep apnoea, the plaintiff refused to accept that sleep apnoea was a “major problem”[175] before the accident. In any event, the plaintiff accepted that his sleep apnoea has not been made worse by the transport accident, and conceded that he has been having “good sleeps now”[176] of “two to three hours in one hit”[177] for the last eight to twelve months with the assistance of the CPAP machine.
[174]DCB 61 and 61A
[175]T 39, L30-31, T 40, L1
[176]T40, L8-9
[177]T40, L21-22
119 The plaintiff has had longstanding difficulties with his weight. Prior to the transport accident he was grossly overweight, and, following the transport accident, his weight has continued to fluctuate, including in the period prior to him undergoing gastric bypass surgery. The plaintiff said that he is now the heaviest he has ever been. His weight was last recorded in December 2016, and at this time he weighed 142 kilograms. I note that this is only 10 kilograms more than his pre-accident weight. Given the plaintiff’s weight has continued to fluctuate since the transport accident, and given the relatively modest increase from his pre-accident weight, I am not satisfied that any weight gain is related to the transport accident. In any event, I consider the weight gain is only modest, and that it may not be long-term.
120 In considering the affidavits of Ms Borzillo nor Ms Mandanici, I expect that neither was aware of the full extent of the plaintiff’s pre-existing health problems. Their descriptions of how the plaintiff was before the transport accident appear inconsistent with the contemporaneous medical records. I also note that both Ms Borzillo and Ms Mandanici stated that they have provided cooking and cleaning assistance to the plaintiff following the transport accident. However this is inconsistent with the plaintiff’s own evidence that he has only required such assistance relatively recently. In addition, in stating that the plaintiff needs help at home, there is no clear delineation as to those jobs which are required as a consequence of the plaintiff’s neck and lower back injury, and those which are needed due to his knee and other health problems. Therefore, I gain little assistance from either affidavit, as to the true nature and extent of the transport accident related consequences to the plaintiff.
121 In circumstances where the plaintiff suffers a range of unrelated medical problems, including significant bilateral knee problems, he was able to do most domestic and recreational activities for at least two years following the transport accident, I am not satisfied that the consequences to him from his lower back and neck injury are at least very considerable.
Plaintiff’s application under part (c)
122 The plaintiff claims that, as a consequence of the transport accident, he suffers PTSD, together with anxiety and depression. For the plaintiff to succeed in this application, it is necessary for him to satisfy me that his psychiatric condition is severe.
123 Following the transport accident, the plaintiff initially received psychological counselling for a short period of time. He did not persist with it, however, as he did not find it helpful. The plaintiff was also referred to a psychiatrist, but, beyond one initial assessment, did not receive any further psychiatric treatment. The plaintiff has taken antidepressant medication intermittently, but at times has had to cease such medication, as it conflicted with his pain medication. The plaintiff currently takes Endep which assists him in his sleep.
124 The plaintiff said he continues to have flashbacks to the accident, as well as nightmares. He also said he experiences anxiety whilst in a car, especially as a passenger. However, he admitted that in his car he travels about 8,000 kilometres per year, which equates to an average of 150 kilometres per week. I consider this to be a reasonable amount of car travel for a retired person, and I consider it demonstrates that that any fear the plaintiff has of being in a car is marginal and is not impacting upon his activities.
125 In cross-examination, the plaintiff said that his greatest psychological distress is the embarrassment he feels in relation to his excessive weight. As I am not satisfied that the plaintiff’s weight gain is related to the transport accident, I can have no regard to the psychological upset it causes him.
126 The plaintiff also acknowledged there is a range of health issues, unrelated to the transport accident, including potential life-threatening conditions, which cause him emotional upset.
127 I note that the plaintiff did not suffer any psychiatric problems before the transport accident, and I accept that the distressing circumstances of the transport accident were the genesis of him suffering psychiatric problems. However, the plaintiff has suffered extensive health problems since that time, and I consider his current psychiatric condition to be a result of a combination of these problems.
128 The plaintiff gave little detail as to the extent of his suicidal ideations. I note that he has not reported such thoughts to his treating doctors. To the extent the plaintiff claims to feel suicidal at times, given the other stressors in his life, I cannot be satisfied that such suicidal ideations arise as a consequence of the transport accident.
129 When considering all of the evidence, I am not satisfied that the plaintiff’s psychiatric condition, caused by the transport accident, has resulted in consequences which can be described as severe.
Conclusion
130 The plaintiff has failed to satisfy me that he suffers a serious injury as a consequence of the transport accident. The application is therefore dismissed.
131 I shall make the consequent orders.
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