McCarthy v Transport Accident Commission
[2013] VCC 454
•1 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-02493
| PAUL McCARTHY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11,12 and 15 April 2012 | |
DATE OF JUDGMENT: | 1 May 2013 | |
CASE MAY BE CITED AS: | McCarthy v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: [First revision 7 June 2013] | [2012] VCC 454 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – injury to lower back impairing the function of the lower back – whether the consequences in terms of pain and suffering and pecuniary disadvantage resulted from the impairment of function of the lower back – whether the consequences were both “long-term” and “serious”
Legislation Cited: Transport Accident Act 1986, s93(4)(b)
Cases Cited: Dwyer v Calco Timbers Pty Ltd [2008] VSCA 260; Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Limited (2011) 31 VR 100; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Dyer with Mr N Dunstan | Slater & Gordon |
| For the Defendant | Mr G Lewis SC with Mr M Clarke | Transport Accident Commission |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 3 June 2011 by which the plaintiff applies for leave pursuant to s 93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 3 June 2005.
2 Mr G Lewis Senior Counsel appeared with Mr M Clarke of counsel for the plaintiff and Mr R Dyer appeared with Mr N Dunstan of counsel for the defendant.
3 The application is brought pursuant to s 93(4)(d) of the Act. Sub-section (6) provides that a court must not grant leave under ss(4)(d) unless the Court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17):
“(a) serious long term impairment or loss of a body function.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the lower back.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered his Court Book (“PCB”), pages 4-151: Exhibit A
· the defendant tendered:
§ video taken of the plaintiff on 18 March 2012: Exhibit 1
§ video taken the plaintiff on 23 and 24 March 2012: Exhibit 2
§ Its Court Book (“DCB”) pages 1-16, 68-69 and 76-171: Exhibit 3
§ Its Financial Court Book (“FCB”) pages 1-295: Exhibit 4.
The background facts
7 The plaintiff was born in August 1960. He is now fifty-two years of age. He is a married man with two children who are now about thirteen and fifteen years of age. He was born in Wagga Wagga in New South Wales.
8 The plaintiff completed his Higher School Certificate, the year after which he commenced work as an audio engineer. It was that field which he subsequently pursued as his career path.
The transport accident
9 On 3 June 2005, the plaintiff drove his car to a position just outside his driveway in preparation to turn his car into his driveway when he was struck from behind by another car.
10 The force of the collision through the plaintiff’s vehicle spun it 180 degrees, and forced his body forward, resulting in his face hitting the steering wheel, and then his body was thrust backwards. His car was not driveable. The rear of it was cut off and it was then rebuilt.[1] It was a major collision involving major forces.
[1]Transcript 12
The issues
11 Essentially, the issues raised by Mr Lewis were:
· The plaintiff made a reasonable recovery from the injury he suffered to his lower back.
· The plaintiff was able to continue working in his pre-injury employment, and subsequently engaged in self-employment, working up to 60 hours per week.
· The plaintiff was able to earn a significant income from his self-employment, and in doing so, was able to drive vehicles interstate and to otherwise travel interstate reasonably frequently by plane.
· In the last few years the plaintiff’s medical treatment has been very modest.
12 Mr Lewis submitted that whatever residual impairment the plaintiff has now arising out of the injury to his lower back, it cannot meet the statutory test of seriousness. Mr Dyer submitted that if I drilled down more deeply into the evidence, there were consequences both in terms of pain and suffering and pecuniary disadvantage which were evident which satisfied the statutory test, and that I should look at the plaintiff as being something of a stoic, that is, a man who pressed on in the face of injury and disablement.
13 After reading the transcript of the evidence and the very helpful addresses made by Mr Dyer and Mr Lewis, and after reading passages from the Court Books, which they emphasised in their addresses, I have come to the conclusion that this proceeding is rather less complex than the size of the Court Books and the initial enunciation of the issues suggested it was.
The Plaintiff's evidence
14 The plaintiff was removed from the scene of the transport accident by ambulance. He was taken to The Royal Melbourne Hospital, where he was kept under observation for some hours. He was then discharged. He made his way home. He experienced severe muscle spasms in his lower back. He then returned to the Hospital on 6 June 2005. His major complaint was persistent neck pain and stiffness and pain in his right scapula. There was no record of the plaintiff making a complaint of lower back pain.[2] The plaintiff said that he had constant pain in his lower back at that stage, and was sure that he mentioned lower back pain to the medical staff at the Hospital.[3]
[2]PCB 53-52
[3]Transcript 15
15 The plaintiff saw Dr Sia, general practitioner, on 8 June 2005. His clinical notes for that day reveal that the plaintiff complained of soreness in his neck, upper back and lower back. He prescribed the plaintiff Voltaren. He referred the plaintiff to Mr Heilbron, physiotherapist.[4]
[4]PCB 42-43
16 The plaintiff did not see Dr Sia again until 31 May 2007. He said that he had physiotherapy. He continued working. It is convenient to digress and to refer to the work which the plaintiff was undertaken at that stage. At the time when the transport accident occurred, the plaintiff was a technical services manager with the Melbourne Exhibition and Convention Centre (“the Centre”). His duties were to deliver audiovisual and communications services.[5]
[5]PCB 8
17 The plaintiff was able to undertake that work without interruption until about mid-2007, when he suffered a deterioration in the condition of his lower back. On 31 May 2007, he returned to see Dr Sia. His clinical notes for that day reveal that the plaintiff told him that he was suffering from lower back pain with pain in his left leg which the plaintiff attributed to the transport accident. Dr Sia made a preliminary diagnosis of an L5-S1 disc bulge.
18 The plaintiff saw Dr Sia again on 4 June 2007. He was referred to have a CT scan which was taken on that day.[6] Dr Sia’s clinical notes reveal that he considered that the plaintiff had an L4-5 disc bulge with moderate L4-5 canal stenosis, and that he was suffering from lower back pain with left-sided sciatica.[7]
[6]PCB 29
[7]PCB 44
19 The plaintiff saw Dr Sia again on 8 June 2007 complaining of lower back pain and left-sided sciatica. He was prescribed Mobic, which is an anti-inflammatory.[8] The plaintiff then saw Dr Sia for treatment for lower back pain and left-sided sciatica on 5, 12, 19 and 26 July 2007; 2, 9, 16, and 30 August 2007; 6 September 2007; 8, 16 and 19 October 2007; 7, 12, and 16 November 2007 (on this occasion Dr Mansour at the same clinic).[9]
[8]PCB 44
[9]PCB 44-47
20 Dr Sia’s clinical notes for 16 October 2007 reveal that the plaintiff had an MRI scan which Dr Sia considered demonstrated disc prolapses at L2-3 at L3-4.[10] The MRI scan was taken on 12 October 2007.[11] Dr Sia referred the plaintiff to have a cortisone injection into his lower back under CT guidance. When the plaintiff saw Dr Sia on 19 October 2007, the plaintiff had undergone a cortisone injection into the left L5 nerve root. His clinical notes for 7 November 2007 reveal that the plaintiff informed him that the cortisone injection had not worked.[12]
[10]PCB 46
[11]PCB 30
[12]PCB 46
21 The plaintiff made a number of applications for leave in that period he was working at the Centre. The first is dated 21 April 2006, and the last is dated for December 2007.[13] The plaintiff obtained a number of medical certificates. The first is dated 16 January 2007 and the last is dated 14 November 2007.[14] There seems to be a correlation between the medical certificates and some of the applications for leave during 2007.
[13]DCB 102-124
[14]DCB 125-131
22 Mr Lewis cross-examined the plaintiff that the medical certificates are backdated, that is, they do not commence on the day when the plaintiff attended on that medical practitioner who provided the medical certificate, but on a day or so earlier. Mr Lewis particularly emphasised that when referring the plaintiff to the clinical notes of Dr Mansour dated 16 November 2007 when the plaintiff made a request of Dr Mansour that he backdate a medical certificate, Dr Mansour refused, noting that it was illegal and that he would not do it.[15]
[15]PCB 47
23 Dr Sia referred the plaintiff to Mr de la Harpe, orthopaedic surgeon. The plaintiff saw him on 18 January 2008. Mr de la Harpe had the MRI scan reports. He obtained the actual films and then reviewed the plaintiff on 21 January 2008. He was of the opinion that the MRI scan showed four levels of quite significant disc degeneration in the plaintiff’s lower back. He was also of the opinion that the degenerative changes demonstrated on the MRI scan were pre-existing.
24 Mr de la Harpe suspected that the transport accident had aggravated the pre-existing degenerative condition of the plaintiff’s lower back, causing it to become symptomatic. He considered that the level of pain which the plaintiff was experiencing significantly interfered with his social and domestic activities. He considered that the plaintiff would be likely to suffer some ongoing intermittent back and leg pain into the foreseeable future. At the time the plaintiff saw Mr de la Harpe, the plaintiff was undertaking swimming and Pilates, although the reference to swimming was later explained by the plaintiff to be hydrotherapy.[16]
[16]PCB 51-52, and as to hydrotherapy at Transcript 21
25 At this point it is relevant to return to the situation with the plaintiff’s employment with the Centre. His employment came to an end on 14 December 2007. He executed a Deed of Release dated 30 October 2007 which contained terms relevant to his separation from his employment with the Centre.[17]
[17]DCB 134-136
26 Mr Lewis referred the plaintiff to a body of documents which suggested that the plaintiff was functioning quite well through 2005, 2006 and 2007. In a letter dated 31 March 2006, the plaintiff was informed that he was to be given an annual performance bonus,[18] and in a letter dated 22 March 2007, the plaintiff was informed that he was to be given another annual performance bonus.[19] He was also referred to a performance appraisal dated 29 July 2005 which was very favourable to the plaintiff, except that an observation was made by his manager/supervisor that the plaintiff had struggled over the preceding year.[20] Mr Lewis submitted that the separation from plaintiff’s employment had nothing to do with the injury to his lower back.
[18]DCB 86
[19]DCB 86A
[20]DCB 91-100
27 The plaintiff said that the Centre accommodated the limitations he was encountering as a consequence of the injuries he suffered in the transport accident. In particular, the plaintiff said that the pain and stiffness he was experiencing in his lower back were becoming an increasing problem for him. It was in that setting that he said that his employment was brought to an end.[21]
[21]PCB 8
28 Mr Andrew Roberts swore an affidavit on 9 April 2013. He has known the plaintiff for approximately twenty years from when they both worked at the Adelaide Convention and Exhibition Centre. He described the plaintiff as being as strong as an ox. He was told of the occurrence of the transport accident and the injury suffered by the plaintiff. He noticed a decline in the plaintiff’s strength and physical endurance which the plaintiff attributed to ongoing pain in his lower back. Over the last few years he has been employed by the plaintiff on a casual basis, and recently as a full-time employee of the plaintiff. He has seen the plaintiff struggle to complete his work due to ongoing low-back pain. He said that the plaintiff’s work is largely supervisory.[22]
[22]PCB 27-28
29 The plaintiff’s wife, Kazumi McCarthy, swore an affidavit on 8 April 2013 in which she likewise described a significant deterioration in the plaintiff’s physical health. She said that the plaintiff is unable to do anything physical around their house. He needs assistance in maintaining the garden and undertaking renovations to their home. He is less resilient in his physical appearance, and his fitness levels have deteriorated. He has given up Aikido and other physically challenging activities. She has noticed him to be an obvious pain.[23]
[23]PCB 25-26
30 After leaving the employ of the Centre, the plaintiff set up a number of entities through which he has operated businesses. I will deal with the business enterprises separately, and then will return to the consequences which the plaintiff contends are serious.
31 I will now turn to the plaintiff’s medical treatment. It would appear that the plaintiff last saw a general practitioner in late 2007, and according to the clinical notes, that was Dr Mansour on 16 November 2007.[24] The plaintiff has not had any physiotherapy since 2009. He had three episodes of physiotherapy in that year in January and December.[25] He has had three or four episodes of chiropractic treatment over the last couple of years.[26] He was prescribed Voltaren and Mobic, but has not used any medication since about late 2007. Instead, he uses fish oil as an alternative remedy.[27] One of the reasons given by the plaintiff for not having more physiotherapy is the cost of such treatment.[28]
[24]PCB 47
[25]Transcript 20-21
[26]Transcript 21
[27]Transcript 21
[28]Transcript 20
The medico-legal opinions
32 Dr Sia provided a medical report dated 28 February 2013. He referred to the treatment he provided the plaintiff, and said that he had not seen the plaintiff since 7 November 2007. However, he was of the opinion that the plaintiff had suffered soft tissue musculoskeletal injuries in the transport accident. The plaintiff had not recovered at the time when Dr Sia last saw him. He was of the opinion that the plaintiff’s prognosis is only fair and that “he may never” recover from the injury to his lower back and return to his pre-injury state of health.[29]
[29]PCB 35-36
33 Dr Thomas, consultant in rehabilitation in pain medicine, examined the plaintiff on 14 June 2007, 16 November 2011 and 13 February 2013. He was of the opinion that the plaintiff had suffered an injury resulting in irritation of the L5 nerve root. Whilst he did not consider that the plaintiff’s condition was substantially worsening, he did consider that was likely to get worse rather than better. He considered that the only treatment which the plaintiff required was supportive and palliative care, and a nerve root block if he had a flare up of sciatica.[30]
[30]PCB 76-77
34 Mr Miller, orthopaedic surgeon, examined the plaintiff on 14 March 2012 and 6 March 2013. He was of the opinion that the plaintiff had suffered a musculoligamentous strain to his lumbar spine and an aggravation of degenerative disease in the lumbar spine. He considered that the plaintiff had suffered significant ongoing symptoms and some radiation of pain into his left lower leg. He considered that the plaintiff’s pursuit of more sedentary work to be appropriate, that the plaintiff would have difficulty engaging in work which involved repetitive bending, repetitive lifting, lifting of weights more than 5 kilograms, and that he would need to shift his posture on a regular basis.[31]
[31]PCB 89-90
35 Dr Hjorth, neurologist, examined the plaintiff on 31 May 2012 and 20 February 2013. In his first report, he was of the opinion that the plaintiff was suffering from L5 radiculopathy; however, much of his reasoning about the injury was directed to the AMA Guides.[32] On the second occasion he examined the plaintiff, he expressed a similar opinion, and added that the problems experienced by the plaintiff were due to nerve root involvement because of the distribution of the pain experienced by the plaintiff and slight wasting of the left buttock and x-ray changes.[33]
[32]PCB 92
[33]PCB 93-94
36 Dr McGivern, surgeon, examined the plaintiff on 11 June 2008. She was of the opinion that the plaintiff’s complaints of pain in his lower back with pain radiating into his left lower limb had an organic basis due to the radiological evidence of lumbar spondylosis, but she considered that the symptoms and signs that she detected related more to lumbar spondylosis than to the injury which the plaintiff suffered in the transport accident. She recommended that the plaintiff have physiotherapy. She considered that the only other treatment would be to assess the effect on the plaintiff’s pain by steroid facet joint injections or medial branch blocks into his lower back.[34]
[34]DCB 15-16
37 Mr B Dooley, orthopaedic surgeon, examined the plaintiff in July 2009. He was of the opinion that the plaintiff had suffered an aggravation of pre-existing degenerative changes probably in the L4-5 disc causing persistent lower back pain and sciatica. He agreed with the opinion of Dr Thomas that the plaintiff’s condition was likely to be ongoing causing mild-to-moderate disability and impairment.[35]
[35]DCB 9-11
38 Mr M Dooley, orthopaedic surgeon, examined the plaintiff on 30 April 2012. He was of the opinion that the plaintiff suffered a soft tissue injury comprising musculoligamentous damage and an aggravation of underlying degenerative disease in his lower back. He considered that the plaintiff would continue to note a background of intermittent lumbar spinal pain with intermittent acute exacerbations of pain, and a continuation of some lower limb pain. He did not expect his condition to deteriorate.[36]
[36]DCB 3-4
39 Mr Lewis submitted that I should be slow to accept the medical evidence at face value because of the history taken by Dr Serry, psychiatrist. After examining the plaintiff on 19 March 2012, Dr Serry recorded that the plaintiff told him that his libido in his energy levels were affected by exhaustion due to the level of work that he was undertaking.[37] Mr Lewis put that history to the plaintiff. The plaintiff does not appear to a given a direct answer to those questions, so it is unclear whether he accepted that he gave that history, but the plaintiff did say that he was working harder in his self-employment than he was when he worked at the Centre. This was also put in the context that the plaintiff’s working habit now has consumed whatever time he would have had to pursue Aikido, surfing and other social, recreational and domestic pursuits.[38]
[37]PCB 64
[38]Transcript 26-27
The Plaintiff's business interests
40 The plaintiff set up a business known as Global LED Screens Pty Ltd[39]. Its business was the importation of LED screen technology into Australia. The plaintiff set it up in anticipation of the separation of his employment with the Centre.[40] It has undertaken very little business. It is not traded for some time.[41]
[39]FCB 90
[40]Transcript 46 and 49-50
[41]PCB 13-14
41 The plaintiff traded under business names known as “PBM Safety” and “PBM Rigging”. Both businesses were part of PBM Enterprises Pty Ltd which operates through the McCarthy Family Trust. The plaintiff is the sole director of the trustee company and he, his wife and two children are beneficiaries under the trust.[42]
[42]PCB 12
42 The plaintiff set up a company known as “Safe Not Sorry Pty Ltd” in partnership with Ms Beatrix Tomlin in about mid 2008. It ceased trading in about April 2010. Its business was consulting work advising clients about safety systems at venues where live shows are staged.[43] When the business of Safe Not Sorry Pty Ltd ceased trading, the plaintiff took half of the clients of that company with him to PBM Safety.
[43]PCB 13 and transcript 36
43 In about July 2010, the plaintiff set up a company with Mr Robert Thomson and Ms Suzanne Tate known as the “Pink Tribute Show Pty Ltd”. The company operates through a unit trust known as “SRP”.[44] Pink is an American stage performer. The tribute shows mimic her songs, performing in pubs all around Australia. At the time when the plaintiff swore his second affidavit on 23 May 2012, the tribute shows numbered about 100 shows. The plaintiff is the production manager. It is his job to set up and manage the shows and ensure that payment is made. PBM Enterprises Pty Ltd has a one-third share in Pink Tribute Show Pty Ltd. Any profits made are paid to the McCarthy Family Trust.
[44]Transcript 53
44 The plaintiff assisted in the set up of a unit trust known as “ATE” in 2011. It was a business essentially centred around a man named Mr Nick Tonge who is a guitar teacher. The plaintiff was a director of the corporate entity associated with ATE. He was involved with it for about twelve months. At the time when he ceased his association with it, he had suffered a loss of $3,000.[45]
[45]Transcript 30-31
45 Mr Lewis concentrated a fair deal of time going through the plaintiff’s financial documents to demonstrate that the plaintiff is earning a significant income, and is expending a significant amount of money on travel expenses. He submitted, in the end, that the financial documents demonstrate that the plaintiff is very active, and so much so that it is inconsistent with him having consequences which can be described as “serious”.
46 It is necessary to set out some of that financial detail:
Year
Income Travel expenses Sub-contractor expenses Source of income 2002 $48,612 Plaintiff's personal tax return[46] 2003 $81,209 Plaintiff's personal tax return[47] 2004 $66,568 Plaintiff's personal tax return[48] 2005 $66,568 Plaintiff's personal tax return[49] 2006 $89,195 Plaintiff's personal tax return[50] 2007 $103,826 Plaintiff's personal tax return[51] 2008 $90,395 $475 - Global LED Screens Pty Ltd[52] Plaintiff's personal tax return[53] $4,694 Global LED Screens Pty Ltd[54] 2009
$1,206 $13,349 - Safe Not Sorry Pty Ltd[55] $11,800 - McCarthy Family Trust trading as PBM Enterprises Pty Ltd[56] Global LED Screens Pty Ltd[57] $75,306 McCarthy Family Trust trading as PBM Enterprises Pty Ltd[58] $6,511 The plaintiff as a sole trader[59] The total income falling into the plaintiff's hands was $83,025. His personal tax return disclosed $44,356[60]
2010
$10,457 $6928 - McCarthy Family Trust trading as PBM Enterprises Pty Ltd[61] $13,575 - McCarthy Family Trust trading as PBM Enterprises Pty Ltd[62] Global LED Screens Pty Ltd[63] $33,075 $21,798 - Safe Not Sorry Pty Ltd[64] $60,545 - SRP Unit Trust[65] McCarthy Family Trust trading as PBM Enterprises Pty Ltd[66] $19,170 $8502 – SRP Unit Trust[67] Safe Not Sorry Pty Ltd[68] $611 Plaintiff as a sole trader[69] The total income falling into the plaintiff's hands was $62,091. His personal tax return disclosed $36,390[70]
The total travelling expenses amounts to $37,228 The total subcontractor expenses amounts to $74,120 2011 $12,094 $38,138 - McCarthy Family Trust trading as PBM Enterprises Pty Ltd[71] $8800 - McCarthy Family Trust trading as PBM Enterprises Pty Ltd[72] Global LED Screens Pty Ltd[73] $66,072 $18,775 - Safe Not Sorry Pty Ltd[74] $115,815 - Safe Not Sorry Pty Ltd[75] McCarthy Family Trust trading as PBM Enterprises Pty Ltd[76] $395[77] Plaintiff as a sole trader The total income falling into the plaintiff's hands was $77,772. His personal tax return disclosed $43,924[78]
The total travelling expenses amounts to $56,913 The total subcontractor expenses amounts to $124,615 2012 $2157[79]
$33,241 - McCarthy Family Trust trading as PBM Enterprises Pty Ltd[80] $6118 - McCarthy Family Trust trading as PBM Enterprises Pty Ltd[81] Global LED Screens Pty Ltd
$84,603
$5688 - SRP Unit Trust[82]
$26,942[83]
McCarthy Family Trust trading as PBM Enterprises Pty Ltd[84]
The total income falling into the plaintiff's hands was $82,446. His personal tax return disclosed $67,395[85]
The total travelling expenses amounts to $38,929 The total subcontractor expenses amounts to $33,060. [46]FCB 16
[47]FCB 19
[48]FCB 22
[49]FCB 25
[50]FCB 31
[51]FCB 37
[52]FCB 89
[53]FCB 43. The plaintiff was paid $32,443 gross by the Centre as a termination payment in that year
[54]Mr Lewis included this as income, but according to FCB 87, it was a loss to the plaintiff not income.
[55]FCB 215
[56]FCB 150
[57]FCB 100
[58]FCB 51. However, $51,936 was distributed to the plaintiff and the balance to his wife and children
[59]FCB 50
[60]FCB 48
[61]FCB 167
[62]FCB 167
[63]FCB 114-115
[64]FCB 229
[65]FCB 258
[66]FCB 168 and 172
[67]FCB 258
[68]FCB 52. However, there is no corresponding distribution from the SNS Unit Trust at FCB 231
[69]FCB 54
[70]FCB 53
[71]FCB 183
[72]FCB 183
[73]FCB 123 and 135
[74]FCB 271
[75]FCB 271
[76]FCB 183
[77]FCB 57, but the sum is referred to as a net financial investment loss
[78]FCB 56
[79]FCB 143, but the sum is referred to as a loss
[80]FCB 203-204
[81]FCB 203-204
[82]FCB 290
[83]FCB 290
[84]FCB 66
[85]FCB 66
47 Mr Lewis showed film to the plaintiff. The films were taken on 18, 23 and 24 March 2012. They were uniformly of very poor quality, mostly taken at night, which made it very difficult to pick up much that was shown on the films. The plaintiff was asked, while the films were being played, to indicate whether he could see himself on any of the films.
48 On 18 March 2012 between 12:24am and 2:31am, the plaintiff passed in front of the camera. At another stage he was seen walking to a car where he spoke to a woman behind the wheel of the car. At another stage he was in a van, perhaps the truck owned by the plaintiff, which was then driven off.
49 On 23 March 2012 between 9:22pm and 9:40pm, a scene unfolded of a stage being set up for a band. The plaintiff was seen twice, but only fleetingly. A reasonable proportion of the film was fast forwarded. On 24 March 2012, the film commenced at about 1:39am and only ran for a few minutes. The plaintiff came into view on one occasion.
50 The plaintiff admitted that the locations where the films were taken were locations where he was present. I take very little from what I saw in the films. There was nothing shown on any the films which suggests that the plaintiff has a physical capacity greater than he alleges.
51 The plaintiff said that he is working 50 to 60 hours per week.[86] His businesses use an Isuzu NPR 200 Pantech van which has an enclosed carrying area. He drives it a couple of times a month.[87] The plaintiff has driven the truck interstate. He shared the driving on a trip to Albury. He drove the truck over a five-day period to Caloundra, Chermside South, and Hervey Bay.[88] He has accompanied the Pink tribute band, acting as its production manager in Victoria, South Australia and New South Wales travelling in a 12 and 20-seater bus. The size of the bus would depend on the line up of the band.[89] He has travelled by plane to travel interstate, hired cars when interstate, and paid accommodation expenses.[90] These expenses have been incurred in paying expenses to travel to conferences,[91] and to pay the expenses of others, such as, between seven and fifteen people involved in the Pink tribute band.[92]
[86]Transcript 24
[87]Transcript 29
[88]Transcript 56-57
[89]Transcript 37
[90]Transcript 35 and 40-41
[91]Transcript 40
[92]Transcript 41
52 Mr Lewis submitted that the plaintiff was capable of working without restriction in his job with the Centre. Thereafter, the plaintiff engaged in self-employment through a number of business entities, working significant hours and producing significant income, which point to the plaintiff being capable of working without much restriction. In the end, he submitted that the plaintiff’s working record and the product of his personal exertion speak volumes of the fact that he does not have an impairment of a kind which can be characterised as “serious”.
53 Mr Dyer submitted that the evidence demonstrates quite clearly that the plaintiff has had an actively symptomatic back which has impaired the function of his lower back to the extent that the separation in his employment with the Centre was due to his inability to undertake the tasks required of him in that job, and he is now working not as productively as he would have had he not been injured. Furthermore, the plaintiff has lost the capacity to engage in social, recreational and sporting pursuits which were a major part of his life.
54 I will now turn to the consequences contended for by the plaintiff and my findings are based on the evidence.
The Plaintiff's case
55 I accept the plaintiff’s evidence that he did suffer an injury to his lower back in the transport accident. It seems to me that despite what is recorded in the report of The Royal Melbourne Hospital, the clinical notes demonstrate that he complained of soreness in his lower back as early as a June 2005.[93]
[93]PCB 42
56 I accept the plaintiff’s evidence that he was less able to undertake the tasks required of him in his employment with the Centre. I accept that it was the reason why the separation occurred in that employment. It seems to me that the unchallenged evidence of Mr Roberts and Mrs McCarthy demonstrate that the plaintiff was labouring under a significant difficulty produced by the injury to his lower back at around the time when the separation occurred.
57 It is more than coincidence that the separation occurred at a time when the plaintiff suffered an undoubted deterioration in the condition of his lower back which saw him return to see Dr Sia on 31 May 2007, following which he underwent a significant amount of medical treatment, and obtained medical certificates to have time off work because of the injury to his lower back. It seems to me that the aggregate effect of the plaintiff’s evidence, the evidence of Mr Roberts and Mrs McCarthy and the undoubted evidence that the plaintiff was suffering deterioration which saw him resort to significant medical treatment during 2007, make it more likely that the separation in his employment with the Centre was due to the injury to his lower back which rendered him less able to do his work to the satisfaction of the Centre.
58 Mr Lewis submitted that I should draw an adverse inference against the plaintiff for failing to produce evidence from someone from the Centre to support his evidence of why that separation occurred. I do not consider there is any merit in the submission. The defendant put the matter in issue by producing evidence in its Court Book to create a platform upon which it could cross-examine the plaintiff that there is no merit in his evidence that the separation in his employment came about because of a reduced capacity on his part to do the work required him by the Centre. Equally, it might have been expected to call that evidence. However, I think the point is somewhat academic given what I see as significant strengths the evidence of the plaintiff that it is more than coincidental that he and his witnesses say that he was not is capable physically due to the injury to his lower back, and the undoubted medical evidence establishes that very fact.
59 In summary, the plaintiff contends that the consequences which amount to the impairment of function of his lower back being “serious” are as follows:
· He has suffered constant troubling pain since the occurrence of the transport accident.[94]
[94]PCB 5, 11 and 18 and Transcript 12
· He experiences further pain when walking up stairs or sitting down or standing for longer than about 40 minutes. He described how he used to walk to the Centre, change into a suit, and walk home. He described having difficulty sitting at a football game and sitting while driving a car.[95]
[95]PCB 6, and Transcript 27-28
· He is, and has been, unable to engage in active play with his children, such as going to the park with his children, kicking a football with his son and pushing his daughter on a swing.[96] Although the plaintiff works long hours, and hence has less time for social, recreational and sporting pursuits, it seems to me that is as a direct consequence of his injury and the separation from his employment with the Centre.
[96]PCB 6-7
· The injury interfered with his capacity to retain his employment with the Centre, and has interfered with his capacity to undertake tasks at music venues, such as climbing into rooves and doing rigging work.[97] Furthermore, he lost his chance to engage in the development of the Centre and the development of a facility known as the plenary hall.[98]
[97]Transcript 28-29 and 66-67
[98]Transcript 67
· The plaintiff has suffered a palpable pecuniary disadvantage. For the year ending 30 June 2007, when he was employed by the Centre, he earned a gross income of $106,103 with $31,919 payable for tax. In the financial year ending 30 June 2012, he earned an adjusted taxable income of $67,461 from all sources. The latter figure was arrived at after what I will call some estate planning, so I am not necessarily satisfied that it can be directly equated with the plaintiff’s income derived from work at the Centre where he was a PAYG employee.
· He is no longer able to engage in the martial art of Aikido. He began learning martial arts when he was eighteen years of age. He derived great pleasure from his involvement in it.[99] Mr Michael Frederic Field is the headmaster of the Iwami Ryu Aikido School in Australia. In his affidavit sworn 22 February 2012, he described the plaintiff as physically fit, and was capable of engaging in training at the school without any apparent restriction. He said that the plaintiff has not engaged in Aikido since the transport accident.[100]
[99]PCB 7 and transcript 70
[100]PCB 21-24
· He is no longer able to go surfing. He began surfing when he was seven years of age. It was also something from which he derived great pleasure through his involvement in it.[101]
[101]Transcript 70
· He is restricted in the work he can do now through his businesses.[102]
[102]PCB 8 and12-16
· He is restricted in undertaking domestic tasks in his home. He was previously able to perform renovations and outdoor maintenance on his home, but now suffers difficulty lifting above head level, climbing ladders, painting, plastering and cleaning gutters.[103] Although it was my impression that the plaintiff and his wife had an arrangement that she would look after the domestic affairs of the household, I have already referred to the evidence of the plaintiff's wife and the extent to which she has observed him being unable or less able to engage in family activities, including, sporting, recreational and domestic pursuits in paragraph 29 above.
· He was referred to travel expenses of $8,502 incurred in 2010, and $60,545 for sub-contractors in that year. He said that he could not do a lot of work and as a result required a crew to do it.[104] It was my impression that the plaintiff was a person qualified to do general rigging work and the technical work relating to audiovisual components and their set up. It was that work which required expenditure which he said he otherwise would not have incurred, if uninjured, to the degree demonstrated in his financial documents.
[103]PCB 8 and 11-12 and transcript 25-26
[104]Transcript 74
60 I have read the transcript of the plaintiff’s evidence, the documents tendered from both Court Books, and I have considered the foregoing evidence in the context of the submissions made by Mr Dyer and Mr Lewis. After weighing up the competing submissions, I have concluded that the pain and suffering consequences and the pecuniary disadvantage suffered by the plaintiff meet the statutory test of “seriousness”.
61 My reasons for so finding are as follows:
62 Firstly, apart from Dr McGivern, the preponderance of the medical evidence is that the plaintiff suffered at least a musculoligamentous injury to his lower back with an aggravation of pre-existing degenerative changes in his lower back, and probably referred pain into his left leg which might be frank radiculopathy due to irritation of the L5 nerve root.
63 Secondly, the plaintiff’s separation from his employment with the Centre is more likely to have been influenced by the fact that the plaintiff was less able to undertake the work required of him. As I have already observed, it is more than coincidental that in 2007 the plaintiff suffered what is convenient to describe as a significant flare-up of pain requiring a significant degree of medical treatment, and furthermore, that is supported by the evidence of Mr Roberts, Mrs McCarthy and Mr Field, that after the occurrence of the transport accident, they observed the plaintiff to change physically in the ways in which they have described in their affidavits.
64 Thirdly, there is more to the plaintiff’s pursuit of his business interests than can be explained by taking a cursory view of the financial documents which I have set out in table form in paragraph 46 above. I accept the plaintiff’s evidence that he is working 50 to 60 hours per week, but that the financial productivity is impaired by the fact that he cannot do a lot of the work that he would otherwise do. He has retained personnel to perform that work at a significant cost, as can be seen, in particular, from the financial breakdown relevant to 2009 to 2012.
65 Fourthly, I accept that the plaintiff suffers pain and has suffered the consequences which are summarised in paragraph 59 above.
66 My overall impression is that the plaintiff obtained medical treatment early on, and then persevered with his injury to his lower back until 2007 when there was an obvious downward spiral in his condition which required significant treatment. I do not have much hesitation in accepting that he has had pain, restriction of movement and interference with his capacity to undertake his work since the occurrence of the transport accident.
67 Balanced against that is the fact that the plaintiff has continued to work reasonably long hours which has produced significant gross income for the businesses. However, that in itself is not the end of the matter. In Dwyer v Calco Timbers Pty Ltd,[105] the plaintiff returned to full-time work, as was the case in Halpin v Wilson Transformer Company Pty Ltd.[106] In both cases, the Court of Appeal did not consider the fact that the plaintiffs were working militated against a finding of serious injury. They provide some guidance to me in determining what I should make of the fact that the plaintiff has translated himself from work at the Centre into a businessman operating productive businesses.
[105][2008] VSCA 260
[106][2012] VSCA 235
68 As in both Dwyer and Halpin, I find that the plaintiff is a stoic who has tolerated the impairment of function of his lower back as best he could. Nettle JA made a very pertinent observation in Dwyer that it would be wrong if, in future, such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.[107] A similar observation was made by Osborn JA in Halpin that the appellant is not to be punished for her continuing application to work and her stoical attitude in the face of pain. His Honour quoted from some of the appellant’s evidence in which she said that one functions and goes on in life, but that is not to say that she did not have pain.[108] The plaintiff’s evidence was very similar: “Well, I run my own business affairs, yes. I’ve had no choice but to set up a bunch of activities to try and keep money turning over for my family.”[109]
[107]paragraph 3
[108]paragraph 49
[109]Transcript 27
69 The plaintiff struck me as being a rather strong minded man who was proud of his bodily integrity and his capacity to engage in vigorous physical activity, such as Aikido and surfing. He is obviously well motivated, and so much so that when he separated from his employment from the Centre he set about trying to find alternative means of exploiting his retained residual capacity for work. This fits with an observation made Ashley JA in Dwyer that the evidence in that appellant’s case was that it was not that he could not work, but that work had been closed off to him because of his injury. The same can be said of the plaintiff here. The work which he did at the Centre, which had demonstrably physical aspects to it, is now closed off to him, which is why he pays others to do work which he says he would be capable of doing if he were not injured.
70 I am not persuaded that the fact that the plaintiff has not had much medical treatment since 2009 also militates against a finding of seriousness. He has been assessed by a number of specialists, none of whom suggest that there is any treatment which will further ameliorate his symptoms except for Dr McGivern and Dr Thomas, who suggest that some injections might help him. None have suggested that his lack of treatment is important in their diagnosis of his injury and the formulation of their opinions of the nature and extent of his injury.
71 In Haden Engineering Pty Ltd v McKinnon[110] and Sutton v Laminex Group Pty Limited,[111] the Court of Appeal considered that the formula to follow in determining whether the pain and suffering consequences are “serious” necessitates considering not only what the plaintiff says about the pain in evidence and to medical practitioners, but also what the plaintiff did about the pain; that is, medication, rest, seeking medical treatment, as well is what the doctors say about the extent and intensity of the plaintiff’s pain and what the objective evidence shows about the disabling effect of the pain.[112] I have followed that formula in applying my mind to the evidence of the plaintiff and the medical evidence.
[110](2010) 31 VR 1
[111](2011) 31 VR 100
[112]Haden at 4-5, and also in Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at paragraph 63
72 I should add that often the submission made on behalf of defendants that, unless all of those considerations are found in the evidence, then the plaintiff should fail, would be to treat those considerations as if they were prescriptive. They are certainly the considerations which a trial judge must balance, but the absence of one or some are not the end of the matter. I make that observation, because I do not consider that the absence of active medical treatment is fatal to the plaintiff’s application.
Conclusion
73 After assessing the evidence and the competing and very helpful submissions made by Counsel, I am satisfied that the plaintiff suffered an injury to his lower back which has troubled him since the occurrence of the transport accident. It has troubled him to the extent that it has deprived him of his capacity to undertake social, domestic and recreational pursuits which I have summarised in paragraph 59 above. I am also satisfied that it has deprived him of a capacity to pursue worthwhile and financially productive work at the Centre, putting him in a position where self-employment is a viable option, but not as financially rewarding as his employment at the Centre.
74 I am satisfied that the injury to the plaintiff’s lower back has impaired the function of his lower back to the extent just referred to, and that the impairment is both long-term and serious.
Orders
75 I will order that the plaintiff be given leave to bring a proceeding at common law, and I will now hear the parties on the question of costs.
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