Maurice-Beluite v Transport Accident Commission
[2023] VCC 1080
•30 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-01956
| WILLY ROMAN MAURICE-BELUITE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2023 | |
DATE OF JUDGMENT: | 30 June 2023 | |
CASE MAY BE CITED AS: | Maurice-Beluite v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1080 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – neck injury – chronic pain disorder – range case – reliability of plaintiff’s evidence
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Woolworths Ltd v Warfe [2013] VSCA 22; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199
Judgment: Leave granted to the plaintiff to commence proceedings for damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr T Nathanielsz | Slater & Gordon |
| For the Defendant | Mr L B R Allan with Ms K M Manning | Hall & Wilcox |
HIS HONOUR:
Introduction
1On 30 August 2017, the plaintiff, Willy Maurice-Beluite, was cycling to work along Moreland Road, Brunswick, heading towards its intersection with Sydney Road, when a car cut across his path to enter a driveway. Mr Maurice-Beluite was travelling quickly, and t-boned the vehicle (“the transport accident”). His right shoulder and head struck the vehicle, and he ended up on the ground with the bike between his legs.
2As a result of the transport accident, Mr Maurice-Beluite suffered a whiplash injury to his neck, and his ongoing chronic neck pain, cervicogenic headaches and pain sensitisation have resulted in a diagnosis of a Chronic Pain Disorder. He also suffers from a secondary psychiatric condition of an Adjustment Disorder.
3Mr Maurice-Beluite seeks leave to bring common law proceedings pursuant to s93 of the Transport Accident Act 1986 (“the Act”) under paragraphs (a) and (c) of the relevant definition of “serious injury” in s93(17) of the Act. The injuries relied upon are to the cervical spine, including his Chronic Pain Disorder. In the alternative, if the initial injury has resolved, and there is no organic basis for his ongoing pain, he relies on a chronic pain condition with a psychological basis.
4For its part, the Transport Accident Commission (“the TAC”) submitted that:
(a) the initial soft-tissue injury resolved some time ago and made no contribution to the current pain and suffering consequences being experienced by the plaintiff. In this regard, it relied on the opinions of the plaintiff’s treating doctors in the immediate aftermath of the incident and in the months and years that followed, and the absence of any pathology demonstrated on various MRI examinations in 2017 and 2018; and
(b) this is a “range case”, where I should exercise caution in accepting Mr Maurice-Beluite’s account of the injury and its sequelae because his evidence was unreliable.
5The principal issue in dispute is the question of the origin or cause of Mr Maurice-Beluite’s current chronic and disabling pain which precludes him from working, and from conducting many aspects of his life as he did prior to the accident; and where he is able to continue to enjoy activity, it is in a markedly restricted manner, and always with the presence of pain.
6For the reasons that follow, I accept the opinions of his general practitioner, Dr Herington; Dr Clayton Thomas, consultant in rehabilitation and pain medicine; Mr Miller, orthopaedic surgeon; Professor Bittar, consultant neurosurgeon, and Dr Nathan Serry, psychiatrist, and find that his transport-accident related condition of whiplash-associated disorder with central sensitisation, has an organic basis.[1]
[1] See Plaintiff’s Court Book (“PCB”) 41, 79, 81, 103, 89 and 143
7Whilst Mr Maurice-Beluite does require ongoing medical care, he has never been referred for orthopaedic opinion or treatment, and I accept that there is no utility in such treatment.[2] Further, although his intake of strong analgesics to treat his pain is limited, this is in the context of daily constant pain which is treated by use of over-the-counter medication, with recourse to strong pain relief on a weekly basis. The need to take medication on a regular basis is an indicator of the seriousness of an injury.
[2] Reports of Dr Clayton Thomas dated 5 June 2018 and 20 January 2021, PCB 76 and 78
8I accept Mr Maurice-Beluite’s evidence that it is only by means of a very significant regime of two to two-and-a-half hours a day of stretching and home-based exercises, as directed by a physiotherapist, that he is able to control his ongoing pain and retain the degree of capacity that he has.
9His level of pain, the need to perform such intense and prolonged home-based conservative treatment, and the ongoing flare-ups and unpredictability of his pain, means that he has not worked since the transport accident, apart from an abortive attempt at a return to work for a few days.
10I reject the TAC’s submission that he is not motivated to improve his capacity and return to work, having received over $200,000.00 in superannuation from a total and permanent disability claim in August 2021.
11Mr Maurice-Beluite is currently forty years of age, and was only thirty-five at the date of the accident. His inability to work for four years prior to receipt of his superannuation entitlements does not fit comfortably with this submission. I find that his access to total and permanent disability benefits is irrelevant to this proceeding, other than tending to support his ongoing incapacity in a general sense.
12I find that the consequences of his ongoing injuries are incompatible with a return to full-time employment. Whilst he has retained some capacity – having regard to his intelligence and a work history that is consistent with part-time work in a sedentary role – his overall condition means that he is substantially incapacitated for work. This incapacity is a significant indicator of serious injury.
13On the whole of the evidence, I am satisfied that Mr Maurice-Beluite has discharged his onus, and leave is granted to commence proceedings for damages in respect of injuries sustained in the transport accident on 30 August 2017.
Principles
14The relevant legal principles in applications of this type are well known and not in dispute. Mr Maurice-Beluite must establish that the consequences to him, with respect to pain and suffering, are “serious” within the meaning of s93(17) of the Act.
15The seriousness of an impairment is determined by whether the pain and suffering and loss of enjoyment of life consequence, including any pecuniary disadvantage consequence, “when judged by comparison with other cases in the range of possible impairments or losses, (can) be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[3]
[3] Humphries and Anor v Poljak (1992) 2 VR 129 at 140
16The severity of a mental or behavioural disturbance or disorder is determined by whether the consequences to the plaintiff, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders are fairly described as being more than serious to the extent of being severe, in accordance with the principles in Mobilio v Balliotis.[4]
[4][1998] 3 VR 833
17In Ellis Management Services Pty Ltd v Taylor,[5] the Court of Appeal stated:
“52. ... After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.
…
57.The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.
58.Nevertheless the relevant assessment must be made objectively by the court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.
59.The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range ... .”[6]
[5] [2013] VSCA 326
[6]Citations omitted
18In other words, I must be satisfied that the pain and suffering consequences of the impairment of his neck are “at least very considerable”, having regard to the consequences to Mr Maurice-Beluite.
19The plaintiff bears the onus of establishing the consequences of the impairment of function from his injury sustained as a consequence of the transport accident.
20Whilst impairment is concerned with what has been lost, the significance of what has been lost may be informed to an extent by what is retained: Dwyer v Calco Timbers Pty Ltd (No 2).[7]
[7][2008] VSCA 260 at paragraph [27]
Credit
21Counsel for the TAC, Mr Allan, cross-examined the plaintiff as to slightly different histories recorded in the clinical notes and reports of various doctors over time as to the precise mechanism of the transport accident. In my view, Mr Maurice-Beluite in this regard, and more generally, presented as a witness of truth who made a number of concessions against his interest during cross-examination, including in the context of the circumstances of the accident, its severity, and its precise mechanism. Ultimately, that cross-examination by the TAC did not assist its case.
22Firstly, in Hettiarachchi v Transport Accident Commission,[8] the Court of Appeal reiterated that the histories recorded in clinical notes and medical reports do not purport to be a verbatim account of what the plaintiff told a doctor on a particular occasion. Care must be taken in considering these, and they are not intended to become a tool for the cross-examiner.
[8][2023] VSCA 27; see also Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [112]
23Secondly, and perhaps more importantly, any controversy about the precise circumstances of the accident was resolved by the tender of a statement of the driver of the other vehicle taken by the TAC.[9] In unequivocal terms, that statement demonstrated the severity of impact, the circumstances of the accident, and the mechanism of impact resulting in the claimed injuries:
“The severity of the impact was major. My airbags did not deploy.
The point of impact was the front left passenger window and door of Vehicle … the front of the Bicycle and the Rider has then dropped and impacted with the road.
…
He was shaken and in shock. The Cyclist did not complain of any pain and discomfort at this stage. The obvious injuries that I noted to the Cyclist at the scene after the accident was grazes on his face and hands. He may have also injured himself when he impacted on the road.
The damage that the Bicycle sustained as a result of the collision was major….”[10]
[9] Exhibit C
[10] Exhibit C at paragraphs [32]-[33], [39], [45]
24Although in this context, Mr Maurice-Beluite’s credit was significantly challenged, I find that his evidence before me was entirely consistent with the independent evidence of the driver involved in the transport accident.
25I was urged to exercise caution in accepting his evidence overall because of the “very, very significant omission” of reference to Mr Maurice-Beluite’s practice of attending an indoor climbing centre from time to time in the recent past. I shall return to that topic later. Suffice it to say that this omission was not fatal to Mr Maurice-Beluite’s credit, or his claim.
26I am satisfied that overall Mr Maurice-Beluite was a reliable witness who did his best to answers questions during cross-examination in a straightforward manner and, in so doing, demonstrated that he is also likely to have done so in the context of providing histories to doctors.
Background
27The plaintiff was born in France in 1982, where he completed the equivalent of Year 12 schooling before migrating to Australia.[11] Motivated to succeed in his new country, he repeated Years 11 and 12 with a view to improving his English[12] and achieving employment. He undertook a course in hospitality at Albert Park College and thereafter had a successful career in hospitality.
[11] Plaintiff’s affidavit sworn 10 August 2021, paragraph [3] at PCB 11
[12] Transcript (“T”) 14, Line (“L”) 2-5
28Before the transport accident, Mr Maurice-Beluite worked in catering, hotel management (including work in the United States for The Ritz-Carlton), as a hotel manager in Costa Rica, and as an events administrative manager for ten years for Victoria Star Cruises.[13] A glowing report of his performance as an employee with Victoria Star Cruises was tendered.[14]
[13] Plaintiff’s affidavit sworn 10 August 2021, paragraph [6] at PCB 12
[14] PCB 178-183
29Although driven to work by a friend after the transport accident, Mr Maurice-Beluite later presented at the Royal Melbourne Hospital due to development of persistent pain in his neck and low back. Trauma CT scanning confirmed lack of any acute significant injuries, and he was treated with analgesia and kept overnight for observation before being discharged home on 31 August 2017 into the care of his local general practitioner and physiotherapist to assist with recovery from soft tissue injuries.[15]
[15] PCB 39-40
30On 12 September 2017, he consulted with his general practitioner, Dr Marc Herington, at Victoria Harbour Medical Centre, who prescribed analgesia for his pain and Diazepam for muscular spasm. He was also prescribed Naproxen (1000 milligrams) for pain relief with limited success; and later Celebrex.
31Mr Herington referred the plaintiff for an MRI scan of the whole spine, which disclosed no fracture or discoligamentous injury.[16] No neural compression was demonstrated. Minor cervical and mild lower lumbar degeneration was demonstrated.
[16]PCB 30
32In a subsequent appointment on 18 September 2017, Dr Herington discussed the results with Mr Maurice-Beluite and recorded that they disclosed “no significant injury”.[17] They showed old degenerative changes and he was reassured, and referred for physiotherapy and a graduated measurable exercise program to manage the ongoing muscle spasm which was causing pain.
[17]PCB 30
33From August 2017 and throughout 2018, Mr Maurice-Beluite suffered chronic pain in his neck, fatigue and disturbed sleep patterns. He was taking over-the-counter and prescription medication from time to time, and not working.
34His treatment during this period was conservative, including physiotherapy, before another referral for an MRI scan of the cervical spine on 19 May 2018. That examination[18] demonstrated no cervical disc bulge or protrusion; no central canal or foraminal stenosis and no neural impingement. Dr Herington recorded that these results demonstrated “no abnormality” and “no explanation for pain or weakness”,[19] and that the plaintiff might benefit from psychological intervention, ongoing physiotherapy and muscle activation, but that there was no role for surgical treatment of his ongoing symptoms.[20]
[18]PCB 32
[19] DCB 34
[20] PCB 46
35By 29 September 2017, he reported that the plaintiff has made progress with his lumbar back pain but there was limited improvement to his neck pain. Not much changed by 31 October 2017, and Dr Herington eventually prescribed him Celebrex.[21] When reviewed on 23 March 2018, Mr Maurice-Beluite reported some improvement in pain with the use of Celebrex, but there was no functional improvement. Dr Herington prescribed him with Norflex to relax his muscles.[22]
[21] PCB 40
[22] PCB 41
36Mr Maurice-Beluite subsequently went into the care of Dr Mounir Ayache, general practitioner. In his opinion, the plaintiff had a reduced range of movement due to whiplash, with muscle spasm.[23]
[23] PCB 71
37Dr Ayache referred Mr Maurice-Beluite to see a pain specialist, Dr Clayton Thomas, who diagnosed whiplash-associated disorder with central sensitisation. The recommended treatment was for pain medication as needed, physiotherapy, psychological support, and a pain management clinic.[24]
[24] PCB 79
38Dr Thomas commenced treating Mr Maurice-Beluite on 4 June 2018, and he has remained under the care of Dr Thomas on an ongoing basis from this time.
39In 2019, Mr Maurice-Beluite returned to France for a period of several months to visit friends and family. It seems that this trip elevated his overall mood but, whilst his symptoms improved, ongoing pain persisted. Upon his return to Australia in 2020, Dr Thomas referred him for treatment at the Dorset Rehabilitation Centre.
40There is no evidence Mr Maurice-Beluite had suffered any injury or impairment to the function of any part of his body prior to the transport accident, and previously enjoyed a very high level of physical capacity. Photographs and other material tendered, along with his affidavit and viva voce evidence, establish that Mr Maurice-Beluite had previously completed a 1,000-kilometre kayaking trip along the Murray River in a homemade kayak; and enjoyed mixed martial arts, white water rafting and camping. He ran, engaged in vigorous sports such as soccer and ultimate frisbee, and was an accomplished mountain climber. He enjoyed extended hiking for up to a week carrying a fully loaded 20-kilogram backpack in steep mountainous areas. He also undertook, on top of his employment, a significant renovation of his apartment, performing nearly all of the work involved, some of it very physical and heavy in nature.
41In general, when he now attempts his pre-injury activities, he suffers afterwards with increased pain levels, forcing him to abandon them.
42Mr Maurice-Beluite previously enjoyed his work, and was earning around $105,000 a year with Victoria Star Cruises at the time of his injury.
43Mr Maurice-Beluite was unsuccessful in his attempt to return to work over a period of about a week following his accident.[25]
[25] T14
Medical opinion
44In the opinion of his former general practitioner, Dr Herington:
“Mr Maurice-Beluite has suffered a severe whiplash injury to his neck, with chronic neck pain, cervicogenic headache, cervical muscular dysfunction and secondary depression.
This diagnosis is based on the history and clinical examination, and radiological findings.
…
Mr Maurice-Beluite has a poor prognosis. He has already had a protracted period of pain and weakness. He has failed to respond to appropriate conservative care, analgesia and rehabilitation.”[26]
[emphasis in original.]
[26] Report dated 29 November 2018, PCB 41-42
45When he ceased consulting with Dr Herington on 28 May 2018, Mr Maurice-Beluite was certified by him as having no work capacity:
“I anticipate Mr Maurice-Beluite will take at a minimum a further 12 months from my most recent consultation in May 2018 to recover. This is more than likely to extend into a period of years, if he does indeed make a full recovery at all. He has significant ongoing pain and cervical dysfunction, with secondary depression symptoms.”[27]
[27] PCB 42
46Dr Mounir Ayache, his current general practitioner, reported on 24 September 2020[28] his findings of reduced range of movement, and a diagnosis of whiplash with muscle spasm, with an uncertain prognosis. In his opinion, Mr Maurice-Beluite had capacity for part-time light duties.
[28] PCB 71-72
47Dr Thomas reported to Mr Maurice-Beluite’s general practitioner and solicitors in 2021 that:[29]
“On examination, he was a cooperative man with good general mobility. He had good musculature of his upper body and neck region. He had full range of movement of his spine. He had full range of movement of his shoulders.
[29] Report dated 20 January 2021, PCB 79, 81 and 82
Review of imaging:
I noted the original MRI report dated 13 September 2017, which revealed trivial degenerative changes in the lumbar spine and cervical spine without neurological compromise.
He informed me that up-to-date MRI of his neck was also normal.
On 4 June 2018, I formed the following impressions:
1. Ostensibly whiplash and associated disorder with central sensitisation.
2. He was medication averse.
3. Ongoing strengthening through Catherine Short was appropriate and reasonable.
4. I was not convinced that he would gain benefit from a multidisciplinary pain management program. He was quite specific at what he wanted to do and what his needs were.
5. We spoke about his mental health. I suggested that he see someone to assess him from his perspective, a psychologist and he accepted this recommendation.
6. I informed him there is from a medical perspective very little to be gained by further interventions. He wanted to know about a neurosurgeon or neurologist but I was not convinced they had any role his management.
…
I think the prognosis here is poor. He has a great deal of difficulty adjusting and coming to terms with his condition.
Vocational limitations do apply. He reports significant functional loss and this appears to have remained.
His condition can be considered to have stabilised.”
48Mr Allan, for the TAC, submitted that Dr Thomas –
“… uses the word ‘ostensibly’ which would seem to convey some doubt, … and ‘associated disorder with central sensitisation’. In the defendant’s submission, as I said, there is some doubt or reluctance on Dr Thomas’ part in giving those diagnoses but what ‘associated disorder with central sensitisation’ means and whether that’s an organic or not is not clear at all, it being the plaintiff’s onus, of course.”[30]
and
“… there’s clearly some doubt in Dr Thomas’ mind as to whether the whiplash condition is an organic condition and the associated disorder with central sensitisation really could mean anything in terms of whether it’s organic or non-organic, in the defendant’s submission.”
(emphasis added)
[30] T97
49In support of this submission, he relied on Dr Thomas’ recommendations for psychological treatment.
50For his part, Mr Brett KC conceded that Dr Thomas did not clearly spell out his diagnosis in his report of 20 January 2021, but instead recorded his “impression” on the first occasion he saw Mr Maurice-Beluite on 4 June 2018.
51I accept Mr Brett KC’s submission that a diagnosis of central sensitisation is an organic disorder. Dr Thomas has treated Mr Maurice-Beluite on an ongoing basis for this condition from 2018, including prescription of neuropathic and other pain medication, as well as medicinal cannabis. His recommendation of psychological treatment is entirely consistent with his opinion that Mr Maurice-Beluite “has a great deal of difficulty adjusting and coming to terms with his condition”,[31] and does not indicate that there is a lack of organic basis to the injury.
[31] PCB 81
Professor Richard Bittar, neurosurgeon
52Professor Bittar examined Mr Maurice-Beluite on 24 February 2021 and 25 November 2022, producing three reports, dated 24 February 2021, 25 November 2022 and 14 March 2023.
53Professor Bittar diagnosed a chronic pain condition, aggravation of cervical spondylosis with neck pain and cervicogenic headaches, with midthoracic pain being referred from the cervical spine.[32]
[32] PCB 103
54In his opinion, Mr Maurice-Beluite sustained a significant whiplash injury to the cervical spine in the transport accident, which has been the sole contributing factor of his ongoing neck pain, headaches and interscapular pain.[33] He is now permanently incapacitated for his work[34] and his prognosis is poor:
“… he has developed a significant chronic pain condition and has now been substantially symptomatic and disabled over three years. He is likely to continue to experience significant pain and disability into the foreseeable future.”[35]
[33] PCB 103
[34] PCB 104 and 108
[35] PCB 103
Professor Mark Cook, neurologist
55Professor Mark Cook examined Mr Maurice-Beluite on 21 January 2023. Professor Cook opined that as a result of the transport accident, Mr Maurice-Beluite sustained musculoskeletal injuries initially to his cervical and lumbar spine, and that –
“… He has been left with ongoing cervical pain, and has developed a chronic pain syndrome with a psychological reaction to that. There is an element of migraine also, probably accounting for the ‘foggy headedness’ that he describes. The development of migrainous syndromes after cervical spine injuries is quite common and well-recognised. Extensive investigations have revealed no alternative explanation, and neurosurgical assessment did not result in advice for any procedures. He wondered whether surgery might be of assistance but I don’t think that is likely. …”[36]
[36] PCB 119
56Professor Cook reported that Mr Maurice-Beluite’s prognosis for his neck and migraine are poor and that these “will be ongoing life problems”.[37] These have restricted his earning capacity and he will be unable to work and gain useful employment.[38]
[37] PCB 120
[38] PCB 121
Mr Russell Miller, orthopaedic surgeon
57Mr Miller examined Mr Maurice-Beluite on 7 March 2019 and again on 1 March 2021. Mr Miller found that Mr Maurice-Beluite suffered an injury to the cervical and lumbar spines, including musculoligamentous strain and aggravation of degenerative disease, and has now developed a Chronic Pain Syndrome.[39] In his view, the symptoms that Mr Maurice-Beluite experiences in his shoulders are likely referred pain from the cervical spine and a manifestation of the Chronic Pain Syndrome and possible soft tissue injury.[40]
[39] PCB 89
[40] PCB 96
Dr Nathan Serry, consultant psychiatrist
58Dr Nathan Serry examined Mr Maurice-Beluite on 5 March 2019, 30 March 2021 (via videolink) and 14 February 2023 (via videolink).
59In his report dated 14 February 2023, Dr Serry opined that:
“The claimant has unfortunately remained physically symptomatic with symptoms which would appear to be consistent with a whiplash-associated disorder.
…
From a diagnostic point of view, the claimant would be considered to have a partially resolved chronic adjustment disorder with anxious features and with features of traumatisation.
The depressive component of his adjustment disorder has essentially resolved.
…
His physical and psychiatric conditions are inextricably linked and his anxiety symptoms in particular are very closely linked with the severity of pain and the unpredictability thereof.”[41]
[41] Report dated 14 February 2023, PCB 143-152
60In Dr Serry’s opinion, Mr Maurice-Beluite does not have a capacity to perform pre-injury duties on a part-time or full-time basis, or any suitable duties on a reliable and consistent basis, an incapacity that is likely to be permanent.
Dr Anthony Menz, orthopaedic surgeon
61Dr Anthony Menz examined Mr Maurice-Beluite on 10 January 2023 on behalf of the TAC. Dr Menz diagnosed the plaintiff’s injuries as a soft-tissue injury to the cervical and lumbar spine, and noted that the cervical spine remained symptomatic.[42]
[42] Defendant’s Court Book (“DCB”) 10
62Although Dr Menz could not explain Mr Maurice-Beluite’s ongoing pain from a soft-tissue injury, he considered there is a scientific basis for central sensitisation which could explain Mr Maurice-Beluite’s ongoing symptoms in the absence of any significant pathology in the radiological investigations.[43] In his opinion, Mr Maurice-Beluite is probably incapable of undertaking his pre-injury employment but has capacity to undertake suitable employment.
[43] DCB 10
63I accept Mr Brett KC’s submission on behalf of the plaintiff that, in context, Dr Menz appears to accept that there is an organic basis for Mr Maurice-Beluite’s ongoing symptoms, which opinion is consistent with the opinions of Dr Thomas and Professor Bittar.
64The medical evidence as a whole establishes that as a result of the transport accident, Mr Maurice-Beluite suffers from a whiplash associated disorder with central sensitisation, an ongoing organic chronic pain disorder, as a consequence of the injury to his neck.
The significance of the Plaintiff’s indoor rock climbing/bouldering
65The plaintiff returned to France again in June 2022 to visit family and was there for three months. He found the travelling difficult as a consequence of his transport accident-related injuries, relying on painkillers. He did, however, enjoy an attempt to return to one of his pre-accident activities, climbing, with a friend in France.
66The extent of Mr Maurice-Beluite’s retained capacity as demonstrated by his “bouldering” every four to six weeks or so since his return from France in 2022 at an indoor rock-climbing facility is an issue in this proceeding. Bouldering involves the use of hand and foot holds to climb an inclined wall, and requires fairly substantial strength and physical dexterity.
67It is relevant, because:
(a) firstly, when objectively considered, Mr Maurice-Beluite, at the times he is partaking in bouldering, is demonstrating significant physical capacity; and
(b) secondly, Mr Maurice-Beluite did not disclose this activity in his affidavit material. He instead deposed that, he “can no longer engage” in “outdoor activities such as … climbing”.[44]
[44] Plaintiff’s affidavit sworn 10 August 2021, paragraph [26] at PCB 16
68The TAC submits that this raises a serious issue as to the reliability of his evidence overall, and further compromises the opinion of doctors who relied upon Mr Maurice-Beluite’s account of his level of capacity in expressing their opinions.
69When considered from the perspective of Mr Maurice-Beluite’s application, I take into account the following:
(a) the bouldering undertaken by Mr Maurice-Beluite involves climbs for up to two minutes at a time, with rests between climbs. It is in a supported environment, with ropes and a soft mat at the bottom of the wall, which extends approximately 2 metres in height;
(b) he is forced to lie down due to the pain for up to an hour after this activity;
(c) he lives 45 minutes away from the indoor rock-climbing facility, and before he partakes in bouldering he must rest and stretch for up to two hours after the drive;
(d) he is only able to climb on an infrequent basis, and is inconsistent in his attendance. He goes alone because he cannot make arrangements with others due to the unpredictability of his pain on a day-to-day basis;
(e) he is markedly compromised in this activity because of his reduced levels of endurance and his pain;
(f) although he enjoys the activity, he no longer enjoys the intensity, duration, and level of difficulty he demonstrated in unrestricted mountaineering and outdoor climbing prior to the transport accident;
(g) he did disclose his restricted climbing activity to his general practitioner[45] and to Professor Mark Cook, neurologist,[46] although histories recorded by others include he had not resumed “climbing”; and
(h) his affidavit evidence does refer to an attempt to climb with a group which “aggravated his symptoms” and to “not being physically able to keep up” with a local climbing club.
[45]Exhibit D, report of Dr Ayache to TAL Insurance dated 22 May 2021
[46]PCB 114
70I reject the TAC’s submission that the omission of reference to his indoor rock climbing in the affidavit material – notwithstanding that it is significant, and ought to have been disclosed – means that I cannot rely on Mr Maurice-Beluite’s evidence on the whole.
71In Cakir v Arnott’s Biscuits Pty Ltd,[47] the Court of Appeal said an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.
[47] [2007] VSCA 104 at paragraphs [49]-[58]
72Mr Maurice-Beluite impressed me as a witness who was making absolutely no attempt whatsoever to mask his current level of capacity. He gave unchallenged evidence that he went to some effort to demonstrate his level of physical capacity and strength to Dr Menz, who accepted the genuine nature of the plaintiff’s presentation.
73I accept the plaintiff’s evidence that this restricted climbing activity is part of his rehabilitation, and encouraged by his practitioners as a component of his self-management program. On the whole of the evidence, it is not inconsistent with the consequences of Mr Maurice-Beluite’s neck injury being at least very considerable to him. In fact, the level of compromise when compared with his pre-injury capacity, the resultant pain and the other factors referred to above only serve to emphasise the serious nature of the consequences of his injury.
Consequences
74Against a background of high capacity in all aspects of his life, it is difficult to imagine why Mr Maurice-Beluite would choose his present circumstances – not working and living in uncertain circumstances in his van at a friend’s property in the northern rivers region of New South Wales[48] – if he were not suffering from very significant ongoing pain and restrictions.
[48] T17
75I find that Mr Maurice-Beluite suffers from the following accident-related consequences:
(a) chronic pain in his neck;
(b) his neck pain radiates into both of his shoulders, and causes him headaches most days;
(c) his concentration and memory have deteriorated;
(d) he has not returned to work since the transport accident, apart from a brief abortive attempt for a few days;
(e) he is unable to continue with numerous recreational activities that he used to enjoy. These include hiking, white-water rafting, mountaineering, camping and running, and team sports such as soccer and ultimate frisbee. When he attempts these pre-injury activities in a limited fashion, he suffers with increased pain levels, and has not returned to many at all. For a person with such pride in and commitment to his physical dexterity and strength, this is a very significant consequence;
(f) he has significant issues with sleep, waking most nights in pain due to his neck;
(g) he has been isolated socially. The unpredictability of his pain makes him reluctant to go out. This has made it difficult for him to cultivate long-term relationships; and
(h) he has no capacity for his pre-injury employment, and only partial capacity for suitable employment.
76Mr Maurice-Beluite’s inability to work has been financially disastrous, and he has been forced to access his superannuation on hardship grounds. His evidence included that due to his symptoms, including brain fog, he found the process of applying for Centrelink benefits in 2020 overwhelming, and he has been unable to complete the process to obtain a disability support pension.
77Mr Maurice-Beluite’s ongoing treatment is also consistent with having sustained a serious injury:
(a) his medication as of 3 February 2023 is Panadeine Forte which he takes on an inconsistent basis, reserving it for the “very worst times”,[49] and Panadol or Nurofen taken daily, four to six times a day;[50]
(b) Mr Maurice-Beluite engages in a suite of pain management techniques. These include deep relaxation, an extensive stretching routine and core exercises. He performs these pain management techniques daily,[51] for about two-and-a-half hours.[52] He also attends a hydrotherapy pool;
(c) he attends his general practitioner, Dr Munir, regularly for review and prescription pain relief[53] and has annual consultations with Dr Clayton Thomas, pain physician.[54]
[49] T57, L18
[50] PCB 19
[51] PCB 20
[52] T85
[53] PCB 19
[54] PCB 20
78The evidence of the plaintiff’s father, Bernard Beluite, and close friend for fifteen years, Andrew Allardice, corroborated Mr Maurice-Beluite’s own account of being a very active person prior to the transport accident, often involved in long hikes, camping, kayaking and other outdoor activities.
79In his affidavit affirmed 24 January 2023, Mr Allardice stated that:[55]
“5.Prior to the accident, Will was one of the most active people I know. Socially, he enjoyed all kinds of sports including Frisbee, Table Tennis and Abseiling. He prided himself on his extremely fast motor skills and he was constantly devising new and challenging games for his friends to play. Pre-accident, Will was very enthusiastic about life and I’ve never met someone with a much energy as Will.
6.Since the accident however, Will has completely changed from someone who was always very active, to someone who can barely stay awake for more than a few hours at a time. Will has said that he finds it hard to sustain the weight of his head using his neck muscles and that he can’t lift things very easily. I have observed him having to adjust and stretch his neck. Will often complains of extreme tiredness and he does seem to tire easily. … .”
[55] PCB 25
80Mr Maurice-Beluite’s father, Bernard, is sixty-two. His evidence included that since the transport accident, his son finds it more difficult to participate physically in the things he used to enjoy, and that he:[56]
(a) has continued to complain of pain coming from his neck, and needs to take time out to stretch and rest often;
(b) is no longer able to do the same activities he previously enjoyed with his parents:
“… we tend to do less physical things together now and tend to stay home more. Prior to the accident however, we spent a lot of time outdoors and travelling - Will has always been adventurous and involved with outdoor activities. We would go on long road trips, sharing the drive and camping together around Australia. We would go kayaking in cold water in winter just to challenge ourselves. Will also took my wife and I hiking in sand dunes and crossing rivers for hours - it was hard to keep up with him!”[57]
[56] PCB 28
[57]Affidavit of Mr Bernard Beluite affirmed 31 January 2023, PCB 28
(c) Mr Maurice-Beluite has become less social, and tends to stay at home, where previously he was often out with friends.
81Neither were cross-examined, and I accept their evidence.
82I find that the consequences to Mr Maurice-Beluite of his neck injury, which has resulted in an organically-based chronic pain condition, satisfy the narrative test. They are more than significant or marked when judged against the range of possible impairments, including those that do not come before the Court.
Paragraph (c) claim
83Paragraph (c) of the definition of “serious injury” provides that “serious injury” means “permanent severe mental or permanent severe behavioural disturbance or disorder”.
84If, contrary to my findings above, there is no ongoing contribution of any organic injury to Mr Maurice-Beluite’s pain and suffering, then I would reject the alternative claim under paragraph (c) based upon a chronic pain condition with a psychological basis. Whilst there is limited evidence of some psychologically-based contribution to his pain,[58] there is insufficient evidence of a disorder which is required in order to satisfy the requirements of s93(17).[59]
[58] Report of Ms Erica Lurie, psychologist, dated 30 September 2018, PCB 67; Mr Brendon Haslam, physiotherapist, dated 24 December 2018, JCB 65; cf Dr Serry, consultant psychiatrist, dated 14 February 2023, PCB 143
[59] See Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199
Conclusion
85Leave is granted to the plaintiff to commence proceedings for damages in respect of injuries suffered as a consequence of the transport accident on 30 August 2017.
86I will hear the parties as to final orders including costs.
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