Marshall v Transport Accident Commission
[2012] VCC 1748
•15 November 2012
| 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-10-01996
| GEOFFREY MARSHALL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 24, 25 and 26 October 2012 | |
DATE OF JUDGMENT: | 15 November 2012 | |
CASE MAY BE CITED AS: | Marshall v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1748 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport Accident – Serious injury – consequences of injury – whether the consequences of the plaintiff’s neck injury were, when compared with other cases in the range of possible impairments or losses, fairly described as “at least very considerable”.
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Dressing v Porter & Anor [2006] VSCA 215; Bezzina v Phi [2012] VSCA 161
Judgment: Leave to the plaintiff to issue proceedings for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Ryan | Holding Redlich |
| For the Defendant | Mr R Gorton QC with Ms R Annesley | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 On or about 27 January 2006, Geoffrey Marshall was the driver of a motor vehicle which was struck by another (“the collision”). He alleges that as a consequence of the collision, he has suffered an injury to his neck.
2 He seeks the leave of the Court to issue a proceeding to recover damages in respect of that injury.
3 His right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Mr Marshall must satisfy the Court that his injury is a “serious injury”.[1]
[1]Section 93(6) of the Act
4 The term “serious injury” is defined in s93(17) of the Act (insofar as is relevant to this application) as a serious long-term impairment or loss of a body function.
5 In order to succeed in his application, Mr Marshall must satisfy the Court that the consequences of his neck injury are “serious”. In order that an injury be considered to be “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
6 Mr Marshall alleges that the consequences of his injury satisfy the threshold test as being “at least very considerable”. The defendant denies that this is so. It is this issue which falls to be determined.
Background
7 Mr Marshall is currently aged seventy-two. He was three days short of his sixty-sixth birthday on the date of the collision.
8 In his youth, he had completed an apprenticeship as a motor mechanic. He worked in that capacity for W D & H O Wills for more than thirty years. He was retrenched by that company in March 1986.
9 Soon after, he began his own automotive business, which continued to trade up until the date of the collision and beyond.
10 In the mid 1980s, Mr Marshall suffered a back injury in the course of his employment with W D & H O Wills. It appears he lodged a WorkCover Claim for Compensation in respect of that injury and a Common Law claim for damages. He received compensation in respect of that injury in about 1988. His evidence was that, since about that time, he had been in receipt of a Disability Pension. Notwithstanding the receipt of that pension, he commenced his own automotive business and performed work in it.
11 From a date which is uncertain, but which appears to be in the late 1990s, Mr Marshall reduced the amount of work that he was performing in his own business as a consequence of his low-back injury. He entered into a sub-contracting agreement with Robert Harper whereby Mr Harper performed work on various motor vehicles requiring repair or servicing. Mr Harper was aware that Mr Marshall had an injury to his low back which caused him problems from time to time and required him to wear a low-back brace. For most of the time during the initial period, Mr Marshall appeared to be able to cope with motor mechanic’s duties provided he was careful. As time passed, Mr Harper did more of the heavy physical work associated with the business.
12 The business was carried on from the garage at Mr Marshall’s home premises in Blackburn. It was never a large business. For some years prior to the collision, it had operated at a loss.
13 In about 2004, when Mr Marshall reached the age of sixty-four, he determined to further reduce the amount of work that he was doing in the business. In his evidence, he referred to having retired at that time. However, I accept that he did continue to work in the business, although he performed little of the hands‑on work associated with vehicle repairs and servicing. He maintained contact with clients; he often collected vehicles from clients and returned them; from time to time he attended at the site of a vehicle breakdown; he arranged for the purchase of required spare parts. His duties did not involve heavy work.
14 Mr Harper continued to perform part-time work for the business on a sub-contract basis after 2004.
15 In 1989, Mr Marshall purchased a hobby farm consisting of about 54 acres near Rochester in central Victoria. He ran a relatively small number of cattle on that property. He continued to reside at his home in Blackburn but regularly travelled to the Rochester property. I accept his evidence that he obtained a great deal of enjoyment from the hobby farm.
16 In 1991, Mr Marshall’s son, David, sustained a serious closed-head injury in an accident. Following this, Mr Marshall spent a good deal of time assisting in his son’s rehabilitation. This also led to him working fewer hours in his automotive business.
17 In the years prior to the collision, Mr Marshall had received conservative treatment in respect of his low back. He had undergone physiotherapy for many years. The precise nature of the injury is unclear on the evidence before me. He had not undergone any form of surgery in relation to it.
18 Mr Marshall’s general practitioner for many years prior to and after the collision was Dr Michael Brown of the North Blackburn Square Clinic. A perusal of his clinical notes for the period of about six years before the collision indicates that Mr Marshall attended on Dr Brown in relation to low-back problems intermittently over that time. Dr Brown recorded flare ups of low-back pain in July 2003, December 2003 and December 2005. He prescribed anti-inflammatory medication on those occasions.
19 Mr Marshall had suffered problems with both his knees for many years prior to the collision. He had undergone approximately fifteen surgical procedures in relation to them. There was no evidence that his knee problems prevented him from working as a motor mechanic for any length of time prior to the collision. However, I consider it likely that his knee problems over the years were of some significance given the need for surgical procedures.
20 Mr Marshall had also suffered from various non-physical conditions prior to the collision. In about 1970, he suffered what was described by him as a nervous breakdown, which he put down to working three jobs at the time. He suffered from some depression at that time, which resolved following adjustments to his lifestyle.
21 Many years prior to the collision, Mr Marshall was diagnosed with Meniere’s disease. He suffered intermittently from symptoms of dizziness and nausea. These were relatively debilitating while they lasted, but generally only lasted for short periods.
Aftermath of the Collision
22 Mr Marshall complained that, within a few hours of the collision, he developed progressive neck pain and headache.
23 He attended upon Dr Brown about three days after the collision. Dr Brown noted complaints of neck pain and secondary headache, tender trapezius muscles, with a fair range of neck movement. His provisional diagnosis was one of a whiplash injury. Management included paracetamol and heat packs. Pain was ongoing. In June 2006, Dr Brown organised an x‑ray of Mr Marshall’s cervical spine which demonstrated multilevel disc degeneration. He was referred for physiotherapy and also treated by way of acupuncture. In 2007, Tramadol, a stronger pain medication, was prescribed. In May 2007, he underwent a CT scan which confirmed the degeneration noted earlier. Mr Marshall became increasingly frustrated and developed some depression. Dr Brown prescribed him anti-depressant medication in May 2007, but this was discontinued as a result of side effects and a lack of clinical response.
24 In July 2007, Dr Brown referred Mr Marshall to Dr Van Wetering, a sports medicine physician, who in turn referred him on to Dr Terence Lim, a pain management physician. Mr Marshall’s neck pain continued unabated. In October 2008, he was referred to Mr Mark Whitty, an orthopaedic surgeon, who had previously treated Mr Marshall in respect of his low back and knee problems.
25 Mr Marshall alleges that he has suffered from persistent, ongoing neck pain and headaches since the collision. He alleges that these have been debilitating and have had a number of consequences for him. I shall return to these later.
Diagnosis of Injury
26 Radiological investigations indicate that there was evidence of degenerative change in Mr Marshall’s cervical spine which pre-dated the collision. Radiology did not disclose any specific physical injury which could be attributed to the collision, in that there was no evidence of recent disc prolapse or bony injury.
27 A considerable amount of time was spent in cross-examination of Mr Marshall in establishing what, if any, problems he had had with his neck prior to the collision. He had told a number of doctors who had examined him after the collision that he had had no prior problems with his neck.
28 The clinical notes of Dr Brown indicate the following:
(a)In December 1995, Mr Marshall had complained of feeling crook with a headache.
(b)In January 1996, it seems (although it is not entirely clear) that he was complaining of headaches.
(c)In November 2000, he had complained of blurred vision after reading. He had been referred to Dr Erlich. Dr Brown queried whether this was abnormal migraine.
(d)In August 2004, he had complained of right-sided scalp soreness which had occurred on some six occasions in the past twelve months. Dr Brown noted that he was tender on the left side of the neck and queried whether such symptom was cervicogenic.
(e)In November 2005, he complained of two weeks of intermittent headaches originating from the back of the neck. Again, Dr Brown queried whether these were cervicogenic and referred him for neck massage.
(f)In early December 2005, Mr Marshall was complaining of headaches.
29 I conclude that whereas it may not be entirely correct to say that Mr Marshall had no neck pain or symptoms whatsoever before the collision, I consider that his complaints of such symptoms to his general practitioner were intermittent and rare. There is no evidence that his activities relating to his automotive business, his hobby farm, driving of motor vehicles or general day-to-day activities were affected by those symptoms.
30 Prior to the collision, Mr Marshall had made a number of complaints to Dr Brown of dizziness and vertigo. These were intermittent and infrequent. Dr Brown considered that they were likely to be associated with his Meniere’s disease which produced such problems two or three times a year but for a limited time on each occasion. There is no evidence that such symptoms or such condition are associated with the collision or its aftermath.
31 Dr Brown considered that the diagnosis regarding Mr Marshall’s neck was that of an aggravation of his underlying degenerative cervical spine disease from which he had made little progress. He was pessimistic of any significant recovery.[3]
[3]Plaintiff’s Court Book (“PCB”) 24
32 Dr Van Wetering, sports physician, considered that Mr Marshall had chronic cervical spine related pain and he thought it may have been a whiplash injury which had caused an aggravation of preceding degenerative change. He referred Mr Marshall to Dr Terence Lim.[4]
[4]PCB 27
33 Dr Lim, a pain management consultant, considered that Mr Marshall had injured or strained various muscles in the collision and that, as a result, his posture was poor, resulting in him overusing various muscles which had perpetuated the irritability leading to the continuation of pain. Further, he considered that Mr Marshall had also developed a degree of central sensitisation which was amplifying his discomfort and perpetuating his condition.[5] Dr Lim thought he would benefit from a pain rehabilitation program.
[5]PCB 29
34 Dr Lim considered that there were no medications or surgical procedures which would cure his central sensitisation or alleviate its debilitating effects.[6]
[6]PCB 162
35 Dr Christopher Fong, rheumatologist, saw Mr Marshall at the request of Dr Brown in February 2009. He considered that Mr Marshall had a Chronic Pain Syndrome with central sensitisation, and organised a pain management program for him, which was undertaken in 2009. At the time of his report in November 2009, he considered that Mr Marshall was having ongoing pain but managing his pain better.
36 In 2010 Mr Marshall had moved from Melbourne to Rochester in northern Victoria. Dr Eji Ekeanyanwu became his general practitioner. He commenced seeing Mr Marshall in 2010 and took over the whole of his management, including that in relation to his neck in early 2011. In February 2011, he referred him to a local physiotherapist. That treatment was in relation to his neck, back and knees. In May 2011, he was complaining of headaches and neck pain. He lacked motivation and concentration and his memory was not good. He was sleeping poorly.
37 Dr Ekeanyanwu gave oral evidence and was cross-examined. He said that notwithstanding the absence of specific references in his notes, on most if not all occasions upon which he saw Mr Marshall, there were complaints of neck pain and headaches. He continues to treat him up until the present time. He considered Mr Marshall suffered from chronic neck pain and headache which had contributed to a subsequent diagnosis of depression.[7]
[7]PCB 165a
38 Ms Nicole Sansonetti, physiotherapist, treated Mr Marshall in 2010. She considered that he had developed a Chronic Pain Syndrome. She thought some physiotherapy treatment would be helpful in alleviating his pain, albeit possibly only temporarily. She found that he had general stiffness in all of his neck movements.
39 Mr John Waterston, neurologist, saw Mr Marshall at the request of his solicitors in June 2009. He considered that he had suffered a significant cervical spine injury as a result of the collision and had ongoing problems with neck pain and restriction of motion, which were likely to be of a permanent nature. He also considered that Mr Marshall suffered from headaches which were cervicogenic in nature.[8] He thought these had stabilised. He re-examined Mr Marshall in January 2011 and took a history of constant headache radiating up from the cervical spine into the frontal region. The headache was quite severe for up to thirty minutes or so throughout the day and weekly he would have to lie down because of the severity of the headache. He found that cervical spine movement was limited and painful, particularly in lateral flexion. His diagnosis was that Mr Marshall had suffered a significant cervical spinal injury as a result of the collision and had ongoing pain and stiffness in the neck with headaches most likely to be cervicogenic in nature.
[8]PCB 132
40 Dr Alex Stockman, rheumatologist, saw Mr Marshall in December 2010 at the request of his solicitors. He considered that Mr Marshall had persisting neck pain and headaches, most likely due to aggravation or acceleration of pre-existing asymptomatic cervical disc degeneration/spondylosis. There was also associated depression characterised by lack of drive, and tiredness.
41 Mr Michael Shannon, orthopaedic surgeon, examined Mr Marshall at the request of the defendant’s solicitors in August 2011. He considered that the diagnosis was one of cervical disc degeneration with headaches, possibly neck related, and Chronic Pain Syndrome. His prognosis was for the condition to remain essentially unchanged. He considered that the degenerative change was significant and longstanding. He doubted the collision had resulted in anything more than soft-tissue injury to the cervical spine but that it may have precipitated the onset of a Chronic Pain Syndrome.[9] In other words, there was a Chronic Pain Syndrome superimposed on substantial degenerative change in the cervical spine. He considered there was radiological support for ongoing neck pain and stiffness and that the headaches may be cervicogenic in origin and associated with the chronic pain. Mr Shannon had taken a history that Mr Marshall had had some prior neck pain when aged about thirty, attributed to fibrositis, followed by some physiotherapy and resolution of those symptoms. Mr Marshall told him that he had not had any long-term problems afterwards.
[9]PCB 26-27
42 Dr Clive Kenna, consultant in musculoskeletal pain management, saw Mr Marshall in February 2011, and again in September 2012, at the request of the defendant. His diagnosis was one of whiplash injury to the cervical spine, clearly superimposed upon longstanding and pre-existing degenerative change to the cervical spine. Initially, he did not believe that there was a relationship between such injuries and the collision.
43 Following his second examination in September 2012, Dr Kenna was of the view that pre-existing degenerative change of the cervical spine had been both exacerbated and potentially accelerated by the collision and that Mr Marshall had been left with chronic spinal pain associated with hypomobility of the neck and associated with persistent and chronic neck pain and headaches. He thought that the collision would not wholly explain the symptoms but that it had played a contributory role. If he had not been involved in the collision, Dr Kenna thought it unlikely that Mr Marshall would be experiencing the ongoing level of symptoms, particularly neck pain and headaches, although his neck may have demonstrated increasing levels of stiffness which may or may not have been symptomatic.[10]
[10]Defendant’s Court Book (“DCB”) 52
44 Dr Kenna accepted that neck pain and headaches were often symptomatic of degenerative changes following a motor vehicle accident. He accepted Mr Marshall’s statements that his symptoms were substantially disabling. [11]
[11]DCB 53
45 Professor Stephen Davis saw Mr Marshall at the request of the defendant in September 2012. He considered that Mr Marshall had relatively mild cervical spondylosis such as would be expected given his age. He reported that neck pain, stiffness and recurrent headaches dominated Mr Marshall’s life and prevented a range of activities. Professor Davis considered that there was a marked disproportion between the severity of the injury sustained by him and the lack of objective signs and relatively mild abnormalities on radiological imaging. He thought that Mr Marshall’s psychological state was probably a major factor in his presentation.
46 All in all, the medical evidence is reasonably consistent. I find that Mr Marshall suffered from pre-existing degenerative changes at multiple levels of his cervical spine. I find that these changes were largely asymptomatic. On rare occasions prior to January 2006, Mr Marshall had complained of some cervical problems and some headaches but these were infrequent and of a temporary nature. The intermittent and rare spacing of these problems is in sharp contrast to Mr Marshall’s complaints of constant pain and headaches since the accident. There is no reason to disbelieve that evidence.
47 I find that in the collision, Mr Marshall’s pre-existing degenerative changes in his cervical spine were aggravated or exacerbated and, as a consequence, became symptomatic. He has suffered from ongoing and persistent neck pain and headaches as a consequence.
48 I reject the submissions made on the part of the defendant that Mr Marshall had suffered from neck pain or headaches of any substance or regularity prior to the collision.
Consequences of the Injury
49 In a case such as this where there is little, if any, objective evidence of substance concerning the injury, much depends upon the Court’s assessment of the applicant’s credit. Here, Mr Marshall alleged that prior to the collision, although he had had ongoing problems with his low back and his knees, he had not previously experienced any substantial problems with his neck or with neck related headaches. It is my view that the clinical notes of Dr Brown, which cover a period of many years prior to the collision, support this allegation.
50 I consider that there was an aspect of Mr Marshall’s evidence in which he provided evidence that was misleading and exaggerated. In his affidavit sworn on 17 November 2009, he swore that he had reduced sex drive.[12] In his second affidavit sworn on 24 March 2011, he swore that he had no libido.[13] These references were plainly references to conditions that he claimed were the consequences of the collision. However, Mr Marshall had complained of lack of libido and loss of erectile function many years prior to the collision. He had been treated by way of regular testosterone injections by Dr Brown, initially on a fortnightly basis, and later, on a quarterly basis right up to the present time. None of these earlier complaints or treatment were referred to by him in his affidavits. I consider that his failure to refer to his prior complaints regarding libido and sexual function and his allegation in his affidavits that loss of libido and sexual drive were consequences of the collision were a conscious attempt to exaggerate his claim and to mislead the Court.
[12]PCB 10
[13]PCB 14
51 I consider that Mr Marshall has continued to suffer from low-back pain of an intermittent nature. The pain does not appear to be permanent. However, it does appear to be debilitating from time to time.
52 Further, I conclude that Mr Marshall does continue to suffer with problems with both his knees. Despite total knee replacement surgery being discussed with his general practitioner, at this time there appear to be no plans for further surgery. Again, I consider that this condition is debilitating from time to time. It is likely that Mr Marshall would have problems with his knees if he was required to spend long periods of time on his feet, or walk for any length of time on uneven surfaces or up and down stairs.
53 It should also be noted that since the collision, Mr Marshall has been diagnosed with coronary artery disease and hypertension. He had a stent inserted. In early 2011, he suffered a heart attack. The evidence is that at the present time, he has made a good recovery from those cardiac problems.[14]
[14]Transcript 130; report of Dr Anthony Jackson dated 8 June 2012 at PCB 190
54 Notwithstanding my findings that Mr Marshall did attempt to mislead the Court in relation to his evidence concerning loss of libido, I found that generally, he was a reliable witness. I am satisfied that he has suffered a number of consequences of the injury sustained in the collision:
(a)He suffers from constant neck pain.
(b)He suffers from regular debilitating headaches which are likely to be cervicogenic in origin.
(c)He requires ongoing medication. He takes on average six Panamax tablets per day.
(d)He undergoes regular physiotherapy which he is funding himself. Although his physiotherapy treatment relates in part to his low-back condition and his knees, I am satisfied that a significant part of it relates to his neck.
(e)Prior to the collision, Mr Marshall owned and regularly visited his hobby farm near Rochester. I am satisfied that this was an important part of his life. There seems little doubt that the hobby farm was not productive in terms of income but that is not the end of the matter. I am satisfied that he had obtained a great deal of enjoyment from his activities on that farm in the years prior to the accident. I accept his evidence that in the year or two following the accident, he found these activities to be beyond him by reason of the effect that they had in relation to neck pain and associated headaches. I accept that he found the drive from Melbourne to Rochester, which he had previously been able to do without problems, had become difficult for him and aggravated those symptoms. I accept his evidence that having to part with the hobby farm was a significant disappointment for him. But for the collision, I conclude that the hobby farm was likely to have been an ongoing part of his life for many years to come. He was able to perform chores on the farm at his own pace. He had a small number of cattle to tend to. I am satisfied that he would have been able to do so and obtain the same level of enjoyment for many years to come, notwithstanding problems with his low back, knees and cardiac condition. It may well have been the case that from time to time he would have had to cease or at least reduce activities. For instance, if he did require further surgery on either of his knees, this would inevitably have involved time away from the farm. Likewise, when he suffered a heart attack in 2011, this would have involved an absence from the farm and a reduction of activities for some time. However, I am satisfied that such reduction or cessation of activities on the farm would have been only temporary. I accept that his disposition of the farm to his son was a direct consequence of the increased difficulties that he had experienced since January of 2006 when the collision occurred. It may well be that from time to time he would have struggled to have done some of the heavier aspects of the farm work regardless of the collision. However, I conclude that he would have been able to have continued with farming activities on a hobby basis for many years and that it would have continued to provide him with a great deal of enjoyment. I accept the evidence of Dr Ekeanyanwu that, but for the injuries to Mr Marshall’s neck and headaches, it would be likely that he would have been able to continue with activities on the hobby farm.[15] I accept the submission of Counsel for Mr Marshall that the loss of his farm was a devastating loss.
(f)Prior to the collision, Mr Marshall and his wife had owned a caravan and had taken that caravan on holidays on many occasions. He had intended to continue to embark upon caravanning holidays into the future. Many retired couples embark upon such activities. Indeed, in 2007, Mr and Mrs Marshall did embark on a trip over to Perth to visit their daughter. During that trip, I accept that Mr Marshall experienced severe neck pain and headaches in contrast to his ability to embark upon such trips and drive long distances without any significant problems prior to the collision. Since the 2007 caravan trip to Perth, Mr Marshall has not attempted any such trips. I accept that this is a consequence of the injury to his neck and the associated headaches. I am conscious of the fact that in 2010, Mr Marshall traded in his older Windsor caravan for a “new” second-hand Regent caravan. I accept the evidence of Mr and Mrs Marshall that such caravan has not been used for any travelling purpose to date. It has been used from time to time as an extra bedroom at their home in Rochester when guests stay.
(g)I accept that Mr Marshall has been unable to enjoy boating activities. On the one occasion that he attempted such activities since the collision he found the movement in the boat in Port Phillip Bay caused him significant neck and headache problems.
(h)I accept that his ability to work around the home has been impaired and that his wife has had to do more of these activities.
(i)I accept that Mr Marshall’s sleep has been significantly affected by his neck and that he wakes on multiple occasions through the evening with regularity. I accept Mrs Marshall’s corroborating evidence concerning this.
(j)I accept that Mr Marshall has increased neck pain and headaches if he attempts to drive long distances. Prior to the collision, he was capable of driving regularly to the farm at Rochester, a distance of some three to three and a half hours’ drive without difficulty.
(k)I accept that his ability to mow lawns and do general property activities has been reduced as a consequence of the injuries sustained in the collision.
(l)I accept that he has suffered from some depression as a consequence of his neck pain and headaches. It is correct that he has from time to time in the past suffered from some depression but it does not appear that this was a permanent state of affairs. It is not surprising that he has developed depression as a consequence of frustration due to ongoing and constant neck pain and headaches. Dr Weissman concluded that he had suffered an Adjustment Disorder. He considered that he had developed a mild to moderate post-traumatic stress and anxiety syndrome directly due to the circumstances of the collision. He also suffered from a chronic mixed depressive and anxiety syndrome as a consequence of, or secondary to, his accident-related pain, injuries and disabilities. He considered that these symptoms satisfy the diagnostic criteria for a Chronic Adjustment Disorder with Depressed and Anxious Mood, of moderate intensity or severity.[16] I note the defendant had Mr Marshall examined by a psychiatrist, Dr Timothy Entwisle, in August 2012. Dr Entwisle’s report was not tendered. Whilst I do not consider that Mr Marshall’s diagnosed psychiatric condition would be one that would amount to a serious injury on its own, I am able to include it as one of the consequences of injuries sustained in the collision when considering whether those consequences satisfy the threshold test.
[15]Transcript 125-127
[16]PCB 146
55 The defendant tendered in evidence two DVD films taken of Mr Marshall in September and November of 2011. The film taken in September 2011 showed Mr Marshall walking short distances, sitting in a motor vehicle and filling his car up with petrol. It did not show him performing any physical activities of note and did not show him performing activities that he maintained he had difficulty with. I consider that the film did show him to walk in a relatively stiff manner consistent with a stiff back and/or stiff knees.
56 The film taken in November 2011 showed Mr Marshall at his home operating a small tractor with a frontend bucket attached to it. It is difficult to determine precisely what he was doing with the tractor over significant portions of the film. However, he conceded in evidence that he had used the bucket to collect a quantity of soil and had then alighted from the tractor and used a shovel to collect some remnants of that material which had not been collected by the bucket. He shovelled that material into the bucket, reversed the tractor from the garage where it was and deposited the load a short distance outside his property. In all, he appears to have used a shovel for the purpose of collecting the remnants of a load for about ten minutes. His evidence was that he had been stiff and sore following that activity and on the next day.
57 Having viewed the DVD films again, I am unable to conclude that they advanced the case of either party. I do not consider that his apparent ability to use a shovel to transfer dirt into a frontend loader bucket for some ten minutes impacts to any degree on his application before the Court.
58 Senior Counsel for the defendant submitted that Mr Marshall was not a witness of credit. He submitted that Mr Marshall had demonstrated a preparedness to exaggerate his evidence or, in some cases, give false evidence which he later changed when confronted with material which indicated the incorrectness of his evidence. I consider that many of the matters of which he gave amended evidence related to matters that had occurred many years ago and I accept that many of his inconsistencies were explained by his imperfect memory. With the exception of the matter referred to above, I consider that he was a reliable witness.
59 I find that Mr Marshall had suffered from a significant and long-term low-back injury and significant and long-term injuries to his knees many years prior to the collision. These injuries had no doubt had an effect on his ability to carry on his trade as a motor mechanic. However, he had for many years prior to the collision been able to participate in numerous activities, albeit with caution. His quality of life had been good. His prospects for continuing that lifestyle into the future for many years was good.
60 I find that the collision caused aggravation of his pre-existing degenerative changes to Mr Marshall’s neck, rendering such condition symptomatic.
61 I consider that the aggravation with its resultant neck pain and headaches has had a major impact on his quality of life and the activities that he is able to participate in since the collision.
62 Counsel for Mr Marshall referred me to the decision of the Court of Appeal in Dressing v Porter & Anor.[17] There, the Court of Appeal said:
“What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.
…
In the second key paragraph of his reasons, the judge concluded, as I noted earlier, that it was difficult, as matters stood, to differentiate the then consequences of the neck injury and the ‘multiplicity of other conditions which significantly impair [the appellant’s] ability to work and enjoy life’. In my respectful opinion, however, examination of the evidence does not support a conclusion that there was any such difficulty. His Honour’s conclusion did not sit comfortably with his apparent acceptance that the appellant was incapacitated by his neck injury to the extent which he had indicated. In any event, the plaintiff complained, so far as his neck injury was concerned, of pain and disability affecting his neck and left arm. His other main problems were arthritis affecting the left hip — it had already been the subject of successful surgery — and disability of the right knee. The symptoms affecting the hip and knee of which the appellant complained must surely have been susceptible of disentanglement from his complaint of symptoms deriving from his neck injury. The same could be said about symptoms of gouty arthritis affecting the right big toe and joints in the hands.
… the fact that painkillers might give pain relief at more than one site of injury could not mean that the injuries themselves were not capable of dissection.”
[17][2006] VSCA 215 at paragraphs [47-48]
63 In this case, I consider that Mr Marshall’s symptoms of neck pain and associated headaches were quite unrelated to his earlier and co-existing problems with his low back and knees. I accept that in considering the extent of the consequences of the relevant injuries on Mr Marshall, I must take account of his overall position, including the restrictions under which he was living for many years prior to the collision and afterwards. In assessing whether the claimed serious injury satisfies the “very considerable” test, I am required to examine the impact of the injury on Mr Marshall as a whole. I am bound, when examining the consequences of that injury, to look at how it affected Mr Marshall and compare him with how he would likely have been absent the injuries he sustained in the collision. This includes looking at and considering the effect (and likely effect in the future) of his pre-existing injuries.[18]
[18]Bezzina v Phi [2012] VSCA 161 at page 7
64 I consider that Mr Marshall would have continued to experience intermittent low-back pain and ongoing problems with his knees. However, I do not consider that these symptoms were likely to have interfered with his lifestyle any more than had been the case in the years leading up to the collision. There was no evidence that he was likely to experience ongoing cardiac problems.
65 I am satisfied that the consequences of the injury to Mr Marshall’s neck and its associated headaches, when compared with other cases in the range of possible impairments or losses, can fairly be described as being at least very considerable and more than merely significant or marked.
Conclusion
66 For the reasons expressed above, I am satisfied that Mr Marshall has suffered a serious injury in the collision as that term is defined in s93(17) of the Act.
67 Accordingly, pursuant to s93(4)(d) of the Act, there is leave to Mr Marshall to bring proceedings to recover damages in respect of injuries suffered by him in a transport accident which occurred on or about 27 January 2006.
68 I shall hear the parties in relation to costs.
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