McCartney v Transport Accident Commission

[2021] VCC 317

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-20-02742

COLIN WAYNE MCCARTNEY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:	1 and 2 March 2021
DATE OF JUDGMENT:	29 March 2021
CASE MAY BE CITED AS:	McCartney v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 317

REASONS FOR JUDGMENT

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Subject:TRANSPORT ACCIDENT

Catchwords:            Serious injury – impairment to the lower back – causation – aggravation

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Humphries & Anor v Poljak [1992] 2 VR 129

Judgment:Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C W R Harrison QC with Ms M Lang	Ryan Legal
For the Defendant	Mr P A Scanlon QC with Mr S Martin	Solicitor to the Transport Accident Commission

HER HONOUR:

1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 6 September 2016 (“the said date”).

2Section 93(6) of the Act provides:

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

3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) – “a serious long-term impairment or loss of a body function”. The body function pursuant to subparagraph (a) is the lumbar spine.

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

5The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[1]

[1]        See Richards & Anor v Wylie (2000) 1 VR 79

6The plaintiff relied on two affidavits and was cross-examined.  Further, the parties relied on medical reports and other documents which were tendered.  I have read all the tendered material.

7The main issues in dispute were causation, aggravation, and range.[2]

[2]Transcript (“T”) 12-14

The Plaintiff’s evidence

8The plaintiff is aged sixty-one, having been born in August 1959.   He is single and has two adult children from his previous marriage.  He is in receipt of Jobseeker and in the process of applying for a disability pension.[3]

[3]        T23

9The plaintiff had previously suffered from back pain during 2014 while working as a fruit picker.  He could recall having an x‑ray of his back that year, and from then onwards he would have had occasional back pain on and off, but nothing that was strong or required any treatment.[4] 

[4]First affidavit

10In February 2012, he had severe back pain that required him to have medical treatment and time off work – “That must have been the end of the orange season.”[5]

[5]        T45 – Tristar clinic notes

11In December 2013, at the end of that season, he had just finished six months and his back pain had flared up after working on the ground harvesting small carrots.  “2014 was the same.”[6]  It was not so much a “breakdown” at the end of the seasons –  “You had to realise they were 30 kilogram bags.”[7]

[6]        T45

[7]        T46- Tristar notes

12The plaintiff moved to a supervisory role before the accident because the supervisor at that time was not doing a good job and the contractor gave the plaintiff a chance to do the job.[8]

[8]        T45

13As his taxation records indicated, in the 2015‑2016 financial year, the plaintiff earned $652, and $2,500 the previous year.[9]  In those years before the accident, there were some cash components given at various times.[10]  In 2015-2016, he might have, “based on probability”, been paid six times $652 in cash.  He was not paid cash after the accident.[11]

[9]        T21

[10]        T23

[11]        T25-26

14He only received cash when there was very, very minimal work – “That is the way contractors like to operate.”[12]

[12]        T60

The accident

15On the said date, the plaintiff was sitting in his parked stationary car next to a fish and chip shop in Deakin Avenue, Mildura (“the shop”), waiting for his order.  He was then rear-ended by another car. There was a big impact, which threw him forward into the steering wheel (“the accident”). 

16After the accident, the plaintiff had pain in his lower back on the right side.  He did not know at the time that he might be bruised, but he did get out of his car and say to both passengers in the other car that he was very tender on the right lower side of his back.[13] 

[13]        T34

17After the accident, when the plaintiff spoke to the other driver, all he noticed on the other car was it had a bull bar on the front and he did not see any damage to it.[14] The other driver drove the plaintiff home. 

[14]        T33

18After the plaintiff arrived home, the shop owner phoned and told him the police and a tow-truck had arrived at the accident scene.  The plaintiff was driven back there by a friend, and given permission by the police to drive his car home with an escort, even though the indicators were not working and the boot was all pushed in and raised. 

19Later on, after the plaintiff’s car was inspected, the insurer decided it was a write-off.  The other car struck the middle and the right-hand side of the plaintiff’s 1991 Fairlane.[15]  The plaintiff received a $2,200 payout from the insurer.[16]

[15]        T32

[16]        T33

20The plaintiff thought he was parked in the second or third car parking bay in front of the shop.  He envisaged there were about four bays.  He was pretty sure his car was not in the first bay.[17]

[17]T32 – cross-examination

21In re-examination, when shown a diagram in the police report of the cars on impact, the plaintiff agreed his car was in front of the shop parked near the exit from the lane.  He confirmed there was more than one car spot outside the shop.[18]

[18]        T59

22The plaintiff was then taken to the series of photographs attached to the MJM investigator’s report which showed a car parked in the third bay from the lane outside the shop.  He then said “I see that I am parked in about the fourth parking bay.”[19]

[19]        T59

23The plaintiff thought the other driver was doing much more than 5 to 10 kilometres per hour on impact because of the plaintiff’s car was a write-off and he was thrown/thrust into the steering wheel – “It would not be surprising that the other driver would tell the police he was doing slower.”[20]

[20]        T38

24The police told the plaintiff at the accident scene the other driver was “hooning around” and that he had overcorrected his car.[21]

[21]        T31

Treatment

25The plaintiff’s back pain reached the point where, in January 2017, he went to see Dr Kehinde at the Nixon Street Clinic in Shepparton.  He told the doctor he had been having back pain since the accident and it was getting worse.  He was prescribed painkillers and sent for a lumbar CT scan, which was undertaken in January 2017.

26On that January 2017 visit, Dr Kehinde told the plaintiff he had bruising in the middle of his back.[22]  He only found out about the bruising when the doctor told him.[23]

[22]        T34

[23]        T37

27In February 2017, the plaintiff’s back pain was so bad he went to the Emergency Department at Shepparton Hospital.  He was also then having stomach pain, which might have been from medication prescribed for his back.

28The plaintiff was referred to specialist neurosurgeon, Mr Yagnesh Vellore, at the Epworth Hospital in Richmond, who examined him on 26 April 2017.  A lumbar MRI scan was carried out that day.  Mr Vellore discussed the various treatment options, including a spinal fusion, but the plaintiff was anxious about the serious nature of that surgery, and keen to avoid it if possible.

29The plaintiff moved to Kyabram in December 2017 and then became a patient of Scope Medical Centre.

Pain

30As at 23 November 2018,[24] the plaintiff continued to suffer from constant lower back pain which varied in its intensity but was always there.  He then took Lyrica to manage the pain.  The pain could get up to a severe level, like someone was driving a knife into his back.

[24]First affidavit sworn

31The back pain got worse with certain activities and movements.  He found that even simple postures such as leaning over the sink to do the dishes could aggravate his pain, and it got worse with certain bending and twisting movements.

32Due to his back pain, he had to avoid putting too much strain on his back, repetitive strenuous use of his back with too much bending and twisting and also heavy lifting.

33As of December 2020,[25] his back pain was not getting any better, and he had had more trouble in the last six months, especially with pain at night.  He woke at least three times a night.  He arranged his bedding so he slept resting up against it,  resting against the wall.  He avoided lying down flat on the mattress as it aggravated his back pain.  This had been his position for roughly a year to eighteen months.  He needed more Lyrica when he was lying flat on his back.

[25]Second affidavit sworn

34The plaintiff has occasionally been wearing a back brace to bed, which gives him extra support and helps.  He gets up in the early hours of the morning when his back is aching and puts it on.

35His back pain now comes and goes throughout the day.  When he gets up and moves around he feels a knife-like sensation in his back.  He does exercises and stretches to relieve it.  When he overdoes it, he gets left hip pain.

Current treatment

36The plaintiff is currently seeing Shani Clark, physiotherapist, at Kyabram Hospital once a month, having first seen her in early 2020.  The defendant has just ceased funding these sessions and Medicare is now going to pay. 

37Ms Clark has given him a green band with which he does exercises when he first wakes up in bed.  He also does a couple of sessions during the day.  Recently, he has been doing a particular group of exercises before bed which have been beneficial.

38The plaintiff continues to see Dr Jaber at Scope about twice a month.  He referred the plaintiff for further lumbar scans in October 2020.

39The plaintiff agreed with Dr Jaber’s note of December 2018 that he presented with chronic back pain with “several exacerbations”.[26]

[26]        T40

40The plaintiff accepted he had had a disagreement with Dr Jager about whether to pursue a treatment path or go on a disability support pension. The plaintiff explained – “When you have obviously got pain and you feel as though you cannot work, the next option in line is obviously a pension.”[27] 

[27]        T51

41The plaintiff agreed that he had told Dr Jager he would report him to the Ombudsman if he did not submit the paperwork for his pension.  The plaintiff had also tried to get a similar letter from Mr Vellore, but he told him it was not appropriate for him to provide it.[28]

[28]        T52

42It was wrong to say that the plaintiff had not gone along the treatment path as he has been having physiotherapy for fourteen months.[29]  He had also been in contact with Goulburn Valley Hospital (“GVH”) before Christmas, seeking pain management, which he expects will involve hydrotherapy.[30]

[29]        T55

[30]        T56

43The plaintiff agreed he quite possibly could have told GVH in June 2019 that he was “managing well” when he indicated he did not want to go ahead with pain management.[31]  He had been told by the lady at GVH there was a very, very long wait with anything in regard to pain management.  He explained to her that he had a place in St Kilda Road where they had special treatment had been recommended to him.[32]

[31]        T43

[32]        T42

44Dr McCallum suggested pain management, and the plaintiff has asked Dr Jaber about this recently.  Dr McCallum also suggested a new medication called Norflex, but the chemist told the plaintiff it was $60 for 100 tablets, which is too expensive for him.

45The plaintiff takes Lyrica when his pain is particularly bad.  He last took it after he saw Dr McCallum in Melbourne in October 2020, because the bus and tram travel and the interview caused his back pain to become severe.  He does not like taking Lyrica, because he has heard horrendous stories about people taking it, and it can become addictive.  He also takes Tramadol for back pain.[33]

Activities

[33]        T58

Football

46The plaintiff’s back pain worsens if he stands or sits for too long in one spot.  He has to shift around to get comfortable.  He used to enjoy going to the football as he is a “mad Essendon supporter”.  He only went to three Essendon games during the 2018 season, and really struggled.

47The plaintiff had to constantly go for a walk to try and ease his pain as this was one of the best ways to manage his pain.  His back was often very stiff in the mornings, and back movements now felt much more restricted than they used to. 

48In the 2019 AFL season, he was able to go to about five games at the MCG and Etihad.  It was certainly not as enjoyable as before his injury.  Watching in the standing area, he often held onto the wire fence in front of him to support his back, because the prolonged standing increased his pain.  Quite often, he squatted down and did some exercises or went for a walk to try and ease the pain. 

Housework

49The plaintiff’s back pain restricted his ability to do normal chores around the home and garden, and he was restricted to lighter jobs.  He avoided heavy lifting, pushing, and pulling.  He did jobs like vacuuming and dishes in parts, by having rests and taking his time.  He also relied more on his daughter to help him with cleaning.  He avoided the heavier jobs in the garden such as clearing shrubs and weeds, as doing them aggravated his pain.[34]

[34]        First affidavit

50The plaintiff has difficulty keeping his yard tidy because of his back pain.  He has a small nature strip out the front which his next-door neighbour does for him.  His son has helped out in the past due to the plaintiff’s back pain and recently came to the plaintiff’s house because COVID restrictions lifted.  His son used a Whipper Snipper borrowed from a neighbour on a heap of prickly weeds in the yard.

Eight-ball

51Before the accident, the plaintiff enjoyed playing eight-ball.  From 1988 to 1990, he was a Victorian state player, and in 1992, he won the Victorian state title.  Eight-ball was his passion.   He played competitively up until about 2006, and then mainly played social eight-ball.  Leading up to the time of the accident, he was playing as often as possible on most nights of the week.  When he was not working, he often also so played during the day.

52Due to his back injury, he was very restricted in his ability to play.   Because of his back symptoms, he could not lean and bend over properly, and playing aggravated his back pain. 

53A couple of years ago, he was asked to fill in in a local eight-ball competition at Mooroopna, the equivalent of Division 4.[35]  He was asked to play because they were aware he was a state player.  There were a lot of shots he could not play, and he was greatly restricted because of his back, but it was a competition where he could make mistakes and still have a chance of winning.   He “didn’t enjoy it that much”, and it was more helping a friend out.  It was a big change for the plaintiff.  When he was an elite player, he could get down over the cue and put his chin on it.   Unless he can play properly he is not really interested, and that remains very upsetting for him.  He gave away playing at Mooroopna as he was not enjoying it at all.[36] 

[35]        T39

[36]        T60

54The plaintiff agreed he was playing irregularly after he stopped competitive eight-ball in 2006 – “We’d often have a hit next door at the workmen’s club after work.”[37]

[37]        T49

55The plaintiff could still play standing upright, and “would have [his] barrister covered in a game”.  He agreed he could now play anyone in a pub and have them covered pretty much standing upright, but with difficulty.  He could play them “doing all the wrong things”.[38]

[38]        T50

Work

56After the accident, the plaintiff had ongoing lower back pain.  He was then working as a supervisor on a fruit block near Mildura.  Despite his back symptoms, he managed to keep working for the next fortnight or so until his work finished up.[39]

[39]        First affidavit

57Over the following weeks, his back pain gradually got worse.  He did a small amount of supervising and “spot picking” work at Cutri Fruit near Swan Hill in December 2016, but he struggled too much with back pain, and he had to give up the work after two weeks.  He was very upset about that, because he was making good money.

58The plaintiff drove to Adelaide after he finished both the 2016 and 2017 seasons.  The trip about which he told Associate Professor Laidlaw when he had back pain was between November 2016 and early January 2017.[40]

[40]        T17

59The plaintiff continued to manage his back pain with medication, rest and exercise, and he was able to do some supervising work on a fruit block in Mildura from about June to October 2017.  The work was light and not too physical, because he was supervising.

60His back pain also prevented him from doing summertime work as a fruit picker.  That work was too physical for him, given his back symptoms.  It involved a lot of ladder climbing, getting down low to the ground, bending and twisting, and carrying heavy bags full of fruit.

61Further, he believed that due to his back symptoms he would find it more difficult to do the lighter supervisory work on fruit blocks.  Unfortunately, he could not even attempt that work in the 2018 summer, because his car broke down two days before Christmas and he had no transport for the long distance between the block and Mildura. 

62The plaintiff agreed that in 2016 and 2017, he performed all the work that was available to him.[41]

[41]        T18-T19

63He confirmed he had in fact moved to supervisory work for 2 full seasons before the accident. He denied he had moved to the supervisory work because his back was crook.  When it was suggested there was no other reason he was breaking down at the end of each season before that, he said “yes, but I was - yes.[42]

[42]        T57

64The role of a supervisor involved keeping a tally on other workers with tally counts and paperwork and the like.  It involved no picking at all.  There were some physical aspects to the job.  At the end of the day, he had to make sure that 12-foot steel ladders were not sitting in the middle of the road and he had to push empty bins out of the row.[43]  There were a lot of variables in an orchard.[44]

[43]        T46

[44]        T47

65The plaintiff did declare that the reason he stopped working was because his car broke down and that prevented him going to work.  He was going to give it a go in 2018, and at the same time, he started having a lot of problems with his back.  He agreed he had worked the 2016 and 2017 seasons.[45]  He had intentions of working in the 2018 season, but the car broke down and he could not do it.[46]

[45]        T29

[46]        T30

66The plaintiff started to get a lot of problems with his back in 2018, particularly doing the housework in his two-bedroom flat.  At the time when he told the TAC he would have returned to work if he had a vehicle, he experienced probably the most pain in his back that he had ever had and he even applied for home help.[47]

[47]        T61 - problems doing housework were noted by Dr Jaber in April 2019

67The plaintiff has only completed Year 9, and his work experience is mainly around factory or meat work and in the orchards.  He could not do those jobs now because they are too physical.  There would be work at the SPC cannery in Shepparton over Christmas but it will all be on a conveyor belt, and he cannot lean over to do the work without making his back worse.

68The plaintiff does not believe he could work as a supervisor, as walking all day and standing would aggravate his back.  He had worked as a supervisor for one contractor over three years with citrus fruit and had done a small stint with avocados.  Although supervisory duties were lighter, it was his experience there was still a physical element to the role, requiring movement of ladders and bins.  When he last worked as a supervisor in late 2017 for the last month, because of his back pain he paid a couple of pickers to do the heavier work for him, such as lifting ladders and moving bins. At that time, he would “obviously have an aching back” and sometimes he would give “a couple of Asian boys” a dollar coin each to get the empty bins out of the row.  He had not done this before the accident.[48]

[48]        T48; T58

69Sitting and standing continues to aggravate the plaintiff’s back pain.  He continues to have difficulty with lifting, pushing, pulling, bending and twisting.  This makes it difficult for him to get a job, as jobs in the past have required him to bend, twist, lift, and be on his feet for extended periods.

70The plaintiff has still been unable to return to work due to his back pain.  Something simple like leaning over the sink to do dishes, or vacuuming, causes the knife-like pain in his back, and he has to stop and rest and try again later.  He is not well enough to work for someone else.

Other health issues

71When his back pain is worse, so is his mood.  It goes hand in hand.  His son just said to him recently that he now gets moody, and little things get to him.

72The plaintiff fractured his right shoulder in late 2019 when he tripped and fell to the ground.  He managed not to hurt his back because he fell forwards.  He attended St Vincent’s Hospital and later saw a surgeon at GVH.  He wore a sling for six weeks.  He had physiotherapy to get more movement into the right arm.  He continues to do these exercises, and his shoulder is coming along quite well.  He does not take any medication for his shoulder, and it would not stop him from working.  It is at about 70 per cent currently.

73The plaintiff has also experienced pain in his right hand over the last year, and had scans.  He has been told it is a common problem, but not bad enough to have an operation.  He still has a painful hand in the morning, but, once he gets some warm water on it, it does not affect him during the day.  He does not take any medication for it, and it would not stop him from working.

Summary of the Plaintiff’s taxable income

Year ended 30 June

Gross Taxable Income

2011

Wages:

$14,580.00 (RJ & DK Anderson)

Other:

$6,350.00 (Centrelink)

Total: $20,930.00

2012

Wages:

$15,388.00 (RJ & DK Anderson)

Other:

$9,262.00 (Centrelink)

Total:$24,650.00

2013

Wages:

$14,145.00 (RJ & DK Anderson)

$159.00 (Ultrastak Australia Pty Ltd)

$102.00 (Salvatore Leonardi)

Other:

$7,118.00 (Centrelink)

Total: $21,524.00

2014

Wages:

$5,794.00 (RJ & DK Anderson)

$1,000.00 (MoreSun Fruits of Bunbartha)

$979.00 (Ross Trimboli Designs)

$344.00 (Nine Powers Pty Ltd)

Other:

$9,292.00 (Centrelink)

Total: $17,409.00

2015

Wages:

$1,326.00 (Agricultural Contracting Australia Pty Ltd)

$442.00 (MoreSun Fruits of Bunbartha)

$363.00 (Nine Powers Trust)

$233.00 (A.C.N.  Orchards Pty Ltd)

$133.00 (Uppal Orchards)

Other:

$12,499.00 (Centrelink)

$6,491.00 (Prime Super)

Total: $21,487.00

2016

Wages:

$579.00 (The Trustee for Webb Income Trust)

$73.00 (GA SL Fowler T/A Jefsand Park)

Other:

$12,515.00 (Centrelink)

Total: $13,167.00

2017

Wages:

$3,228.00 (Mallee Contracting Trust)

$2,300.00 (Cutri Fruit Pty Ltd)

Other:

$11,974.00 (Centrelink)

Total: $17,502.00

2018

Wages:

$11,234.00 (Mallee Contracting Trust)

Other:

$8,852.00 (Centrelink)

Total: $20,086.00

2019

Other:

$14,311.00 (Centrelink)

Total: $14,311.00

2020

Other:

$19,035.00 (Centrelink)

Total: $19,035.00

Treaters

74The plaintiff’s general practitioner, Dr Kehinde in Shepparton, certified in March 2017 that he had been suffering from a nagging low back pain since he was involved in an accident in September 2016.  The recent CT scan was noted, and the doctor reported that the plaintiff’s inability to work and constant pain issues had been of great concern to him.  The plaintiff was then in the process of seeing a spine surgeon for further treatment options.

75Mr Vellore, neurosurgeon, wrote to Dr Kehinde in April 2017 thanking him for referring the plaintiff, who, it was noted, essentially presented as a result of significant low back pain.  He had had a motorcar accident in September 2016 when his car was rear-ended by a “hoon driver”, according to him, and had since had significant low back pain which had been worsening.

76Having reviewed the recent MRI scan which demonstrated a damaged disc at L5 with a posterior bulge and S1 compression, Mr Vellore went through the surgical and non-surgical treatment options with the plaintiff.  He thought the more permanent solution would be to perform an L5‑S1 anterior lumbar interbody fusion, noting the plaintiff would be in touch with him soon if he wanted to go ahead with that procedure.

77Dr Jaber, general practitioner in Kyabram, has treated the plaintiff since December 2018 after he presented with chronic back pain with “several exacerbations,” including the accident.

78As of November 2020, Dr Jaber thought the plaintiff had a permanent partial incapacity for work.

79Dr Jaber noted the plaintiff is taking Lyrica, Panadeine Forte, Amlo and Perindopril.  He detailed the plaintiff’s treatment to date and advised that the recommendations of Dr McCallum, pain specialist, would be implemented.

80Mr Matthew Claydon, vascular and endovascular surgeon, wrote to Mr Vellore in June 2018 following a pre-surgical visit, advising that a vascular diagnostic scan showed no major abnormalities in the abdominal or pelvic vessels.

81In May 2019, the plaintiff presented at Malvern Chiropractic Clinic for an assessment of his chronic low back condition.  He stated his pain began shortly after a car accident in September 2016 in which he indicated a “hoon driver rear-ended his car”.

82Approval had been received from the defendant in June for twelve chiropractic visits.

83Following treatment, chiropractor, Dr Danica Newbold, advised that the plaintiff had shown some improvement in his overall condition, no longer describing constant referred pain into the right upper gluteal region.  His range of movement had moderately improved overall, and he was able to walk for slightly longer, and faster paced.

84She advised that the next phase of treatment would include education and monitoring strength and conditioning of the core and spinal musculature.  She recommended he seek instruction of this phase with a physiotherapist for a short period, about three months, and then return to her.  That would mean he could possibly return to some light duties in a workplace at some point in the future, as well as continue to improve on his regular activities of daily living.  She thought overall, his prognosis was fair, depending upon application and compliance with prescribed treatment protocols.

85The plaintiff had physiotherapy at Kyabram District Health Service from Ms Shani Clark from February to August 2020.

86The plaintiff reported he experienced a car accident in September 2016 where his stationary car was rear-ended.  The impact caused him to be thrown forward into his steering wheel, and resulted in a lower back injury.  He advised of problems thereafter working as a fruit picker, and that he was then trying to apply for a disability support pension.

87Ms Clark noted that the injury had affected the plaintiff socially, with problems attending the football in Melbourne.

88Ms Clark thought the plaintiff was able to return to suitable employment such as a supervisor role as he had previously completed.  There would need to be a return to work plan with assessment of work duties.  His injury was a permanent condition and he would continue to suffer pain and disability into the future.

Investigations

89Following a CT scan of the plaintiff’s lumbo­sacral spine in January 2017, it was reported there was bilateral L4‑5 and L5‑S1 facet arthropathy, and right paracentral/broad-based disc protrusion, but no significant neural impingement demonstrated.  It was noted that, reviewing the pain chart the plaintiff had drawn at the time of the study, appearances were more in keeping with facet arthropathy.  The right thigh symptoms, though, could be due to secondary neuritis of the L4 nerve root.

90The plaintiff had a lumbar MRI scan in April 2017.  It was reported there was moderate to large right paracentral L5‑S1 disc protrusion with mild compression of the right S1 nerve in the subarticular recess.

91Following a lumbar CT scan in November 2018, it was reported at L5‑S1 there was a right lateral recess and foraminal disc protrusion, resulting in a right exiting L5 and possibly a right descending S1 nerve root impingement.  Central canal diameter was satisfactory at that level.  Mild bilateral facet hypertrophy was identified.

92There was a non-contrast CT scan of the lumbo­sacral spine in October 2020.  It was reported there was transitional lumbo­sacral anatomy with lumbarisation of S1.  There was no spinal canal stenosis.  There was stable right paracentral and right postero­lateral disc protrusion at L5‑S1 contacting the right S1 nerve root in the lateral recess and contacting the right L5 nerve root in the neural foramen.  There was multi-level facet joint degeneration.

Medico-legal evidence

93The plaintiff was examined by Professor Richard Bittar, neurosurgeon, in September 2018.

94The plaintiff reported longstanding lower back pain which had been present for at least four to five years.  This was intermittent, and he attributed it to osteoarthritis.  His pain was fairly mild, and he took Panadol Osteo about once a week to manage it.

95The plaintiff’s condition deteriorated following a transport accident in September 2016.  He was an unrestrained driver of a stationary car which was struck from behind by another vehicle.  He experienced some discomfort on the right side of his lower back at the time, and this was followed by the development of worsening right leg pain radiating into his right leg.

96The plaintiff was treated with Lyrica, and his right leg pain had subsequently resolved, but he continued to experience lower back pain and was referred to a neurosurgeon, who discussed surgery with him.

97On examination, the plaintiff complained of constant right-sided lower back pain which affected the entire lumbar region and radiated to the posterior aspect of his right hip.  Its average severity was 5 to 6 out of 10, being more severe than it was prior to the transport accident.  It is now constant, whereas previously it was intermittent.

98Overall, the plaintiff’s quality of life was significantly diminished.

99The plaintiff was then taking Lyrica once or twice a week, and not having any other treatment.

100The plaintiff was able to return to his normal work following the accident, ceasing work in October as scheduled.  He worked again during the fruit-picking season in 2017 and had not worked since around October that year.  His car broke down prior to the commencement of the 2018 season, and he had been unable to afford to replace it.  This loss of transport had left him unable to work during 2018.

101Professor Bittar viewed the August 2014 lumbar x‑ray and the April 2017 MRI scan.

102On examination, the plaintiff had right-sided mid and lower lumbar paravertebral tenderness with muscle spasm.  There was no evidence of radiculopathy.

103Professor Bittar diagnosed aggravation of lumbar spondylosis and right L5‑S1 intervertebral disc prolapse.  He thought the transport accident had been a significant contributing factor.

104He noted the plaintiff had a significant history of lower back pain which was intermittent prior to the accident and was now more severe and constant.  Treatment requirements had increased slightly when compared to prior to the accident.  On that basis, he thought the accident accounted for 60 to 70 per cent of the plaintiff’s current disability, with about 30 to 40 per cent being due to his pre‑existing condition.

105Professor Bittar noted that prior to the accident, the plaintiff was able to work in an unrestricted fashion as a fruit picker as well as doing some supervision on the block. His job as a picker involved heavy lifting as well as repetitive bending, and also climbing ladders frequently.  He was now only able to work in a supervisory capacity.

106On re‑examination in January this year, Professor Bittar included further details of the accident circumstances and post-accident treatment in his report.  

107He noted that following the accident, the plaintiff experienced an immediate onset of right-sided lower back pain, and there was an extensive delay before emergency services arrived.  When they did so, about an hour after the accident, the plaintiff had been driven home by the other driver, and received a call from the shop owner notifying him that police, ambulance and tow-truck services had arrived.  The plaintiff was then driven back to the scene, and given permission by the police to drive his car home with an escort.  His car was subsequently written off.

108The plaintiff experienced ongoing lower back pain but remained at work for around the next two weeks until his pre-planned work schedule was finished.  His back pain progressively worsened over the next few weeks.  He was able to undertake a small amount of fruit picking during that time.  He was later able to return to work in a supervisory role with negligible fruit picking in 2017, and remained in that role until November, by which time he ceased work due to pain. 

109The plaintiff’s lower back pain was radiating into his right leg in the early stages; however, he was treated with Pregabalin and his right leg pain resolved.  Low back pain persisted, and he was referred to Mr Vellore, who discussed surgery.  The plaintiff agreed to consider an anterior lumbar interbody fusion, and the defendant was approached for approval, but that was not forthcoming.

110Professor Bittar noted the plaintiff had not been able to return to work, and his ability to participate in the full range of social, domestic and recreational activities had remained severely restricted.

111On examination, the plaintiff complained of right-sided lower back pain which was present most of the time, varying in character between stabbing and aching, and varying in severity depending on activity.  The back pain had an average severity of 5 out of 10 with a maximum of 7 out of 10, and was precipitated by a range of activities.  His pain was much more frequent, severe and disabling than it had ever been prior to the accident.

112The plaintiff’s social activities were disrupted predominantly by his inability to stand for more than 40 minutes.  Recreational activities were severely impacted.  He had previously been a competitive pool player, and he could no longer participate in that activity to any significant extent.  His attendance at football matches had been limited.  His sleep was severely disrupted, and he frequently experienced daytime tiredness.  His domestic activities were significantly impacted, and overall his quality of life was severely diminished.

113On re‑examination, the plaintiff had bilateral lumbar paravertebral muscle spasm and tenderness, particularly on the right side.  There was a moderate restriction of lumbar flexion, and mild restriction of extension.

114Professor Bittar gave the same diagnosis as on initial examination, and again concluded that the accident had been a significant contributing factor.  While the plaintiff did have a history of pre-existing lower back pain, this was mild and much less frequent than it is now, and it did not have a significant impact on his ability to undertake a wide range of social, domestic, recreational and vocational activities.

115Professor Bittar thought the accident was responsible for the overwhelming majority of the plaintiff’s current pain, disability and requirement for treatment.  He noted that prior to the accident, the plaintiff was able to work in an unrestricted fashion as a picker as well as supervisor. He is now only able to work as a supervisor.  He is permanently incapacitated for his full pre-injury duties.  Theoretically, he could do a sedentary job, but, given his age, education, training skills and work experience, it appeared highly unlikely he would be able to procure that sort of work in the open labour market.

116Dr Symon McCallum, pain specialist, saw the plaintiff in late 2020.

117Dr McCallum noted the plaintiff was rear-ended while in a stationary vehicle.  He had lower back pain.  He went to work for about five to six weeks after the accident, but struggled due to back pain.

118Dr McCallum noted the plaintiff had had lower back pain in 2014.  He was a fruit picker. The pain was intermittent and mild, and he took Panadol Osteo occasionally.

119Dr McCallum had available all lumbar investigations from November 2017.

120On examination, the plaintiff had a slight decreased range of movement in the right hip.  He had minimal pain to palpation in the lumbar spine, lumbo­sacral area and buttocks.  Extension and rotation were stiff and slightly increased the pain.

121Dr McCallum thought the plaintiff had central lower back and buttock pain which may be related to the facet joint arthroscopy, with which there will be a muscular component.

122He noted the plaintiff had a poor level of function compared to what he used to be.  He was going to be deconditioned, and may have some fear avoiding behaviour.

123Dr McCallum recommended the plaintiff would benefit from more active physiotherapy, a gym and swim membership, and he should be assessed for suitability for a multi­disciplinary pain rehabilitation program and encouraged to walk more.  He was possibly a candidate for Norflex.

124Dr McCallum believed the plaintiff had been incapacitated for his work, since he had to stop working in the weeks after the accident.  He believed he tried working in November 2017 but could not do it due to pain.  He thought it unlikely the plaintiff currently has a work capacity.  His prognosis is poor.

125The plaintiff was seen by psychiatrist, Dr David Weissman, in September 2018. 

126The plaintiff told Dr Weissman he was sitting in his car outside a fish and chip shop in Mildura.  His gold-coloured Fairlane was written off in the accident.  His car was parked.  The handbrake was not on.  He was listening to the radio.  His seat was back.  The plaintiff told him that a “hoon, a young fella”, who had only had his driver’s licence for six weeks before the accident, hit him from behind.

127The plaintiff told Dr Weissman he experienced pain in his right lower back but did not seek medical assistance until three and a half months after the accident.  About three months after it, he went on a holiday to Adelaide.  He drove there, and stopped four times on the way, and had Nurofen with him.  When he returned from his holiday in Adelaide, he saw his general practitioner, Dr Kehinde.  On examination, the plaintiff reported continuing to experience right-sided low back pain as well as pain in the top of his right buttocks.

128The plaintiff told Dr Weissman of his problems not having a car, and being unable to drive the five hours from his home to Mildura to the fruit block.

129On mental state examination, the plaintiff referred to mild reactive frustration, disappointment, reduced energy, and slightly lowered self-esteem and confidence regarding his physical limitations and restrictions, particularly regarding playing eight-ball.

130Dr Weissman thought the plaintiff came across as a very straightforward and uncomplicated historian.  He could not elicit any PTSD symptoms or traumatisation features.  The plaintiff experienced mild frustration and disappointment with reduced energy levels, and slightly lowered self-esteem and confidence consequential to his physical limitations and restrictions, especially regarding eight-ball.

131Dr Weissman concluded the plaintiff was suffering from some symptoms and features of a mild Chronic Adjustment Disorder consequential to the transport accident.

The Defendant’s evidence

Victoria Police report

132The incident summary read as follows:

“Veh 2 static parked on roadside outside coral Sea fish and chip shop at 303A Deakin Ave Mildura with driver on board.  Veh 1 exited car park from between shops to enter Deakin Ave behind Veh 2 and turn left to head north on Deakin.  Driver of Veh 1 has mis calculated dimensions of veh and impacted his front left corner on right rear corner of Veh 2 as he was attempting to drive around Veh 2.  Nil damage to Veh 1, minor to nil damage to Veh 2.  Details exchanged between parties at the time.  Driver of Veh 2 stated at the time that it jarred his lower back but he was ok.  Has since contacted police stating that he has had ongoing issues with his back and needed a report for TAC claim purposes.  Nil police action against driver of Veh 1 as at time had just obtained licence and veh and was unfamiliar with veh and inexperienced.  Nil offences detected at the time.”

133It was noted Veh 1 was a 2000 Toyota Hilux Utility, green.  The initial point of impact was the left front panel.  There was nil damage to that vehicle.  The initial point of contact to the plaintiff’s vehicle was the right rear panel.  The level of damage was “moderate – driveable vehicle”.

134The diagram of the point of impact had the plaintiff’s vehicle parked in the bay closest to the exit from the lane.  The reason for the accident was noted as “failed to negotiate around parked vehicle and collided with rear corner of same”.  The car was leaving a driveway and going straight ahead.

Lay evidence

135Christopher Marron, the other driver involved in the accident, signed a statement following interview by MJM Corporate Risk Services in November 2020.

136Mr Marron is now twenty-two.  On the said date, he held a probationary licence.  He was driving a 1999 Toyota Hilux which was in fine mechanical condition, and the brakes and steering were in working order.

137At about 8.45pm, he was driving out of the fish and chip shop car park in a southerly direction, and then turned left to travel east in Deakin Avenue.  He was travelling at about walking pace immediately before the accident.

138As he turned left, he misjudged the distance of a parked car in front of him and on his left.  He did not have time to take evasive action other than slam the brakes on at the last minute.  He hit the vehicle’s middle to right-hand rear quarter with a light impact.

139He was concentrating and not distracted by his phone.  He stopped his car and got out, and noted the back bumper of the gold Ford was dented and pushed in. He could not recall if there was any buckling further along the right side of the vehicle.  The other driver got out and asked him if he was okay, and he said he was.  The other driver was moving around freely and did not complain about any pain or injury.

140They exchanged relevant details, and Mr Marron was about to leave when police arrived.  He did not realise someone had called them.  He gave his version of the events to police, and they let him go without a penalty after a roadside breath test.

141His insurer paid for the repairs to the other car, and he had to pay an excess of about $1,600.

The Defendant’s medical evidence – Investigations

142The plaintiff had a thoracic and lumbar spine x‑ray on 20 February 2008 following a fall off a ladder.  It was reported there was a minor curvature convex to the right in the upper lumbar spine.  The transverse processes were intact, as were the sacroiliac joints.  An acute fracture was not identified.  There was mild wedging of the T12 vertebra and a mild compression deformity noted with loss of about 20 per cent vertebral body height.

143An acute fracture or alignment disturbance was not identified in the thoracic spine.  There was wedging of a mid-thoracic vertebra at the designated T8 level with loss of 25 per cent vertebral body height, which may represent an insufficiency fracture.

144Following a lumbar spine x‑ray on 20 August 2014, it was reported there were moderate facet joint OA changes throughout.  There was minor anterior wedging of L1 with loss of 10 to 15 per cent vertebral height noted.

Clinical notes – pre accident

145The plaintiff attended Dr Olise at Tristar Medical Group on 16 September 2011.  Under “History”, the following was recorded:

“Low back pain, pain right hip posteriorly, pain lower right posterior ribs.  No radiation, no cough or breathlessness, pain started 3 days ago when he overstretched the back balancing himself on a falling ladder.  Wants to have an x-ray to exclude fracture.”

146On examination, the plaintiff was limping on his right leg and tender over the posterior hip/pelvis and lower right ribs.  The thigh was normal.  X-rays of the hip and pelvis were requested, and Naprosyn prescribed.

147On 8 February 2012, the following history was recorded:

“Severe low back pain, made worse by work, fruit picking on the farm, no pins/needles in the legs or numbness, no bowel or bladder symptoms.

Needs a centre link certificate for one month to rest the back.  Not able to work effectively due to hip pain.”

148On 10 December 2013, the following history was reported:

“Just finished 6 months[’] work at the orange farm, back pain has flared up after working on the ground harvesting small carrots, could not continue the job after 1-2 hours, needs some rest for back to recover.  In to get a medical certificate.”

149The plaintiff attended Dr Saprid on 30 May 2014.  The history was “low back pain, no radiation, from apple picking”.  A Centrelink certificate letter was created.

150On the 19 August 2014 attendance, Panadol Osteo was prescribed and an x‑ray requested of the plaintiff’s lumbosacral spine.  That radiology was explained to him on 25 August 2014.

151The plaintiff was referred to Swan Hill District Health on 7 November 2014.

152The plaintiff attended the clinic in July and November 2015.  On the latter visit, there was a long discussion on lower back exercise.  Range of movement was good, with mild pain.

Post-accident attendances

153On 28 October 2016, the plaintiff attended for a repeat prescription of Coversyl (blood pressure).  No other complaint was noted.  He was advised to lose weight, and advised about healthy diet and regular walking.

154The plaintiff attended Nixon Street Medical Centre on 27 January 2017 when he saw Dr Kehinde, who noted the plaintiff was an old client of the practice.  The history was as follows:

“Has low back pain which began 4 months ago when he was hit in his car by a hoon driver.  The pain got worse in the past few days.  No weakness in the lower limbs.  Has no sphincter disturbances.  Some bruising present over the upper lumbar region centrally.  He is on blood pressure lowering medication.  Said he has not had it for some time.  Not sure of the medication.”

155Lyrica and Tramadol were added, and a lumbar spine CT scan was requested.

156On the next visit on 2 February 2017, Dr Kehinde noted the plaintiff was considering applying for a disability support pension.  He was unable to do the fruit picking job and he had significant financial issues.  He was currently homeless, and slept in his car around Shepparton lakeside overnight.

157The lumbar CT scan was discussed, and it was noted a Centrelink medical report form for a disability pension would be completed when brought in by the plaintiff.

158The first note of an attendance with Dr Jaber in Kyabram is 14 September 2018.

159Dr Jaber then noted that the plaintiff had been seen by a neurosurgeon and psychiatrist, “used to work at fruit block and represent the state in Pool game, but because of the disc and sciatic cannot do it any more.”

160On 17 October 2018, Dr Jaber noted that this was the last Centrelink medical certificate he would give until he received some evidence about the plaintiff’s condition from the neurosurgeon and psychiatrist in Melbourne.  The reason for contact was low back pain, disc bulge, L5‑S1.

161There were a number of attendances from November 2018 to April 2019 where the plaintiff requested documentation for Centrelink for a disability support pension application, and further treatment and investigations were discussed.

162On 2 April 2009, the plaintiff brought letters from the neurosurgeon.  The plaintiff refused physiotherapy and hydrotherapy as he believed it would provoke his pain and worsen the disc.  The TAC had refused funding for the surgery.

“The patient insists the need for disability pension without trying other pain management modalities.  Threatened me by reporting to ombudsman.  I have explained to him that I have offered him support for 12 months with exemption from work on understanding to see neurosurgeon seeking second opinion.  He didn’t.  We talked about physio and hydro, but he rejected, needs disability pension, he has an appointment with Centrelink who asked him for voluntary work where he said he can’t do, given him referral to pain clinic.  I suggested Bendigo or Melbourne, but he said he has no transport.  I gave him my card to present to Centrelink.  Talked to me regarding exemption till he was assessed by pain clinic specialist.  He had explained to him many times if he is unhappy with my management he can see another GP.”

163On 18 April 2019, Dr Jaber noted that the plaintiff was waiting to hear from GVH and he would also have an appointment with Centrelink in two weeks for a further job plan assessment.  He was still having issues with his back and body movement and rolling in bed, pain aggravated in mopping or cleaning the house.  He was to see a social worker for home assessment after the Easter holiday.  He still needed a medical report before 8 May 2019 stating he was unable to do any work, and he said he had 70 per cent of incapacitating injury, as told by a neurosurgeon.

164Dr Jaber wrote- “I feel the patient is not satisfied with all my explanation.  I asked him to see another GP in the future.”

165Dr Jaber wrote to Centrelink on 26 April 2019 to support the plaintiff’s claim for disability.  He advised that he had started to see the plaintiff in 2018 with chronic back pain with several exacerbations, having been involved in a car accident in 2016, noting he was working as a supervisor in a fruit block till 2017.

166Dr Jaber advised that the plaintiff had been treated by different specialists and he had a permanent partial incapacity for work, was unable to pick things, bending or lifting.

167On 20 June 2019, GVH advised the plaintiff it was discharging him from the Chronic Pain Clinic.  It was noted the plaintiff had expressed that he was “managing well” and no longer required their services. GVH thanked the plaintiff for attending.

Medico-legal evidence

168The plaintiff was examined by orthopaedic surgeon, Dr Anthony Menz, in December 2020.

169The plaintiff said he was stationary in his car, which was parked on the side of the road, when it was hit by a second car driven by a young person who had only just obtained his licence and had lost control of the car.  The plaintiff was not wearing a seatbelt and he was thrust forward, and his abdomen hit the steering wheel.

170The plaintiff did not go to hospital, and he did not see a doctor until about four months after the injury.  He first saw a general practitioner in early 2017, who put him on Tramadol and later, Lyrica.  He returned to supervising fruit picking in May 2017 through to November 2017, and had not worked since because of his back pain.

171The plaintiff stated that prior to the accident, he had never had any back problems before.

172The plaintiff said on a good day his back pain was about 4 out of 10 and on a bad 6 to 7.  There was no radiation of pain into the lower limbs, and no altered sensation into the limbs.

173The plaintiff said before the accident, he was a state-ranked eight-ball player and he used to regularly attend the football, and now could no longer play and could no longer stand for three hours at the football.

174On examination, the plaintiff had a limited range of lumbar movement.  Bilateral straight leg raising was to about 45 degrees.  Neurological examination of his lower limbs was normal.

175Dr Menz had available the 2017 CT and MRI scans and the November 2018 CT scan of the lumbar spine.

176Following the accident, the plaintiff started to complain of low back pain, and that had persisted for over four years with very minimal improvement, despite lengthy courses of physiotherapy and chiropractic treatment.

177Dr Menz thought there was a direct relationship with the plaintiff’s injuries and the accident.

178Dr Menz was asked to comment on Dr Kehinde’s clinical entry on 27 January 2017:

“Has low back pain which began 4 months ago when he was hit in his car by a [hoon] driver.  The pain got worse in the past few days ...  Some bruising present over the upper lumbar region centrally.”

179Dr Menz explained that bruising was a transient form of bleeding into the subcutaneous tissues and usually resolved within one to two weeks of the injury.  It was of no relevance to the plaintiff’s low back pain, other than indicating a direct blow to the soft tissues around the back.

180When asked about any pre-existing condition, Dr Menz noted the January 2017 CT scan showed pre-existing mild to moderate degenerative change at L4‑5 and L5‑S1 which would have pre‑dated the accident.  The accident would have aggravated this pre-existing degeneration and the surrounding soft tissues.

181In the attachment to this report, Dr Menz noted he had received the Tristar notes detailing the plaintiff’s treatment for pre-accident back complaints.  However, he made no mention of these notes in this report or his subsequent report when he was provided with other medico-legal reports which referred to these earlier clinical notes.

182Dr Menz thought there were no inconsistencies between his findings and the plaintiff’s complaints.  The plaintiff had developed a Chronic Pain Syndrome, which was very difficult to resolve.  His prognosis was poor.

183Having noted that the plaintiff stopped work in November 2017 because of back pain, Dr Menz thought it unlikely that he could return to that into the future.  He believed the plaintiff’s pre-existing degenerative change would interfere to a degree in his domestic and leisure activities.

184Dr Menz provided a supplementary report in which he advised the October 2020 CT scan did not cause him to alter his opinion.  He had read the reports of both  Professor Laidlaw and Professor Bittar and would agree with virtually everything they said.  Their reports in no way caused him to alter his opinion at all. 

185Associate Professor Laidlaw, neurosurgeon, saw the plaintiff in December 2020.

186The plaintiff told him that he was sitting in his parked car, not wearing a seatbelt, outside the fish and chip shop, when his car was struck from behind by a utility which he thought was going at a fair pace.  The police report stated that there was a low speed impact, estimated 5 to 10 kilometres per hour.

187The plaintiff said his car sustained significant damage, with its boot and tail lights pushed up in the air.

188The plaintiff said that immediately after the accident, he got out of the car and talked to the other driver and exchanged details.  He remembered telling the other driver he was a bit tender in the right side of his lower back, saying it felt like a bruise, but said he did not need to go to hospital or seek any medical attention.  The other driver then drove the plaintiff home.

189About an hour later, the shop owner called the plaintiff to say that emergency services were at the scene, so the plaintiff returned and talked to the police.  They asked if he wanted to go to hospital.  The plaintiff said he was tender in the back but could walk, and was okay.  The police report also mentioned the plaintiff stated that he had jarred his back.  The police suggested to the plaintiff that he slowly drive his vehicle home, which he did.

190The plaintiff went back to work the next day, and worked until the end of October, which was the end of the season.  He then had his usual break and travelled around a bit, and in November, planned to drive to Adelaide.  He described having a very sore back on that drive.

191The plaintiff first saw a doctor about back pain in January 2017, and went back to work in May until October 2017.

192In mid-October 2017, he then moved down to Swan Hill, where he heard there might be a full-time supervisor role.  However, after two weeks his back pain was really bad, despite Lyrica.  While he thought he was doing a good job, the bosses said he was not pulling his weight.  He last worked on 14 November 2017.

193The plaintiff told Professor Laidlaw that he had had four episodes over the last three years where he “aggravated [his] sciatic nerve”.

194The plaintiff described intermittent back pain and stiffness in the lumbar paravertebral region, mainly on the right.  He also described limited right shoulder movement.

195Medication then included one or two Lyrica capsules per month and Panadeine Forte once a month for bad back pain.

196On examination, the plaintiff had some restriction of lumbar movements, but no evidence of any neurological compromise.  He also had some restriction of his right shoulder movements.  Professor Laidlaw was not aware of any inconsistencies between his examination findings and the plaintiff’s complaints.

197In terms of recreation, the plaintiff said he was previously a keen and competitive pool player, and represented Victoria in competition; however, he had stopped elite-level playing fourteen years ago, and now only played socially.  He loved watching horse racing on television, and followed Essendon in the football.

198In Professor Laidlaw’s view, the plaintiff sustained an episode of recurrence of his previous episodic lower back pain in the accident.  He noted previous documented episodes of similar symptoms recorded in 2011, 2012 and 2013.  The symptoms after the accident suggested non-specific back pain without sciatica or neurological symptoms, often referred to as “soft-tissue injury”.

199The plaintiff developed a more severe exacerbation spontaneously driving to Adelaide, and a further progressive exacerbation at work in October 2017, followed by three more severe exacerbations over 2017-2018.

200In Professor Laidlaw’s view, the accident did cause some exacerbation of the plaintiff’s back pain, although the symptoms were not severe and did not prevent him from working at the time.  Without imaging soon after the accident, it was not possible to definitively state whether the accident contributed to the disc prolapse or if the prolapse occurred later on the trip to Adelaide when the plaintiff first developed severe symptoms.  On balance, he thought the latter was more likely.

201When asked to comment on Dr Kehinde’s January 2017 note, Professor Laidlaw stated:

“The reference to bruising is recorded in the history, and not under the examination findings.  I have therefore interpreted that to mean that Mr McCartney told the doctor that he had bruising in the upper back after the … [accident].  I do not interpret it to mean that bruising was seen by the doctor at that visit.”

202Professor Laidlaw thought radiology reports from 20 February 2008 of x‑rays of the thoracic and lumbar spine showing minor compression fractures indicated that the plaintiff had a fall from a ladder and had paravertebral pain.  No other information about the event was available.

203The plaintiff’s previous recorded presentations with lower back pain, and some right buttock and hip pain on occasions, in 2011, 2012, and 2013, had similar symptoms to his current symptomatology, and prevented him from working at that time. However, Professor Laidlaw could find no records of further episodes between 2013 and the car accident,[49] and so he thought the accident caused recurrence of the plaintiff’s backache, but not as severe as previous episodes, as it did not stop him from working.

[49]        He is unaware of 2014 entries and x-ray

204He noted post-accident, the plaintiff developed a more severe exacerbation spontaneously while driving to Adelaide and a further progressive exacerbation at work in October 2017 and in 2017-2018, three more severe exacerbations.

205The CT and MRI scans reported degenerative changes and disc prolapse are common and are not necessarily the cause of the plaintiff’s back pain.  Degenerative changes are longstanding, but the disc prolapse occurred some time after the accident.

206He thought the plaintiff was likely to have ongoing intermittent lumbar pain in the foreseeable future, but he did not expect his condition to deteriorate.

207He considered the plaintiff’s symptoms suggested the accident exacerbated a longstanding recurrent low back pain condition.  The symptoms were relatively mild for two months following the accident, and did not stop the plaintiff from working.  Therefore, he thought the accident caused an episode of recurrence of longstanding intermittent back pain.

208On balance, he thought the accident was only responsible for a relatively small part of the plaintiff’s current symptoms, and that it was likely that without the accident the plaintiff would still have had similar symptoms.  There were restrictions, because of problems leaning forward or lifting.

209He was impressed that the plaintiff had genuine symptoms.  He did not think they were in any way embellished, and the plaintiff was very cooperative.  However, he suspected that the plaintiff’s current inability to perform physical or manual labour, and his limited job opportunities because of his education and previous limited work experience, had put him in a financially precarious situation.

210The attachment indicates Professor Laidlaw was forwarded the various earlier clinical notes.

211He provided a further report in February 2021, having been provided with Dr Menz’s report and the reports from Professor Bittar and Dr McCallum, and also the October 2020 lumbar CT scan report.

212The report did not change his opinion.  He had read the reports of the other medico-legal examiners with interest, and agreed with the majority of findings and opinions expressed in each report. Nothing in those reports caused him to alter his opinion.

213He repeated a number of his earlier comments about the diagnosis  and concluded that the accident did cause some exacerbation of the plaintiff’s back pain, although the symptoms were not severe and did not prevent him from then working.

Other documents

214MJM carried out a Corporate Risk Services report in December 2020 to which a number of photographs of the accident scene and a car parked in third bay from the lane exit in front of the shop were attached, as was Mr Marron’s  statement.

215There was surveillance carried out of the plaintiff in late 2020 which equated to 37.75 hours.  No film was shown during the hearing.

Overview

216There is no dispute the plaintiff suffered an injury to his lower back in the accident.  His claim was accepted and the defendant has funded treatment thereafter.

217Examiners have described the plaintiff’s back condition as a soft tissue injury to the lumbar spine.[50]  Dr McCallum thought the plaintiff had central lower back pain and buttock pain which may be related to the facet joint arthroscopy.  Professor Bittar diagnosed aggravation of lumbar spondylosis and  right L5-S1 disc prolapse.

[50]        Dr Menz and Professor Laidlaw

Pain

218The evidentiary basis of the pain assessment will ordinarily comprise inter alia, what the plaintiff says about the pain (both in court and to doctors). … .” [51]

[51]        Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [11]

219In general terms, the plaintiff presently complains of moderate pain, not a continual level of substantial pain.[52] He recently deposed back pain comes and goes.  He told Professor Bittar pain is constant with an average severity  5 to 6 out of 10 and up to 7, whereas pre accident it was intermittent. He recently told Professor Laidlaw and Dr Menz pain is now intermittent.

[52]        Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [48]

What has the Plaintiff done about the pain (for example medication, rest, seeking medical treatment)?

220Although the plaintiff says he experienced lower back pain immediately after the accident and he reported it to the police, he did not seek medical treatment until four months later in January 2017.  He gave no reason for this delay, undertaking his usual fruit picking work that season.  He did however go to the doctor in October 2016, post-accident, and requested blood pressure medication. Otherwise there was “no other complaint”.  He also had back pain while driving to Adelaide around Christmas 2016.

221Pre accident, Panadol Osteo had been prescribed in August 2014 to be taken once a week for back pain.  While Lyrica has been prescribed only after the accident, the plaintiff takes it on an infrequent basis,[53] although he explained this was because of his concerns with addiction to heavy painkillers.[54]  It does not appear to be the case he takes it once or twice a week as noted by Professor Bittar.  In any event, Professor Bittar described treatment requirements as increasing slightly after the accident.

[53]        T67- 1-2 tablets per month - history to Professor Laidlaw

[54]        last taken in October 2020, T73 - history to Professor Bittar

222The plaintiff was referred to neurologist, Mr Vellore, in April 2017.  He suggested surgical and non-surgical options but it appears the plaintiff did not have a follow up visit.  Funding for surgery apparently was not forthcoming.[55] The plaintiff was also nervous about having any procedure.

[55]        History to Professor Bittar

223The plaintiff had twelve sessions of chiropractic treatment with Danica Nebold following the defendant’s approval of funding in June 2019.

224For the last fourteen months, the plaintiff has been having physiotherapy at Kyabram Health Service, funding having been approved in early 2020.

225Since the end of last year, he has been on the waiting list for pain management and hydrotherapy at GVH.

Aggravation

226In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the condition of the plaintiff’s back pre accident and determine whether the additional impairment resulting from the accident is serious and permanent.

227In Petkovski v Galletti,[56] the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  …”

[56] [1994] 1 VR 436

228Therefore, any accident-related aggravation therefore must be serious for the application to succeed.

229Counsel for the defendant submitted there is no analysis on a medical basis in terms of Petkovski v Galletti[57] as to the before and after situation and how the accident changed the plaintiff’s circumstances. “This is because pre-accident, the plaintiff was operating, both work and socially.”  He was not playing competitive eight-ball and was playing irregularly.[58]

[57]Ibid

[58]        T66

230It was submitted the plaintiff’s own evidence in cross-examination is that any change is not of sufficient significance to warrant a finding that any aggravation is serious.[59]

[59]        T66

231Counsel for the plaintiff relied on Professor Bittar’s opinion that the accident was responsible for the overwhelming majority of the plaintiff’s current pain, disability and requirement for treatment.  It was submitted Dr Menz was similarly supportive and Professor Laidlaw was also helpful to the plaintiff’s application.[60]

[60]        T72

Credit

232As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[61]

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

[61]        (Supra) at paragraph [12]

233There were a number of issues raised by counsel for the defendant as to the plaintiff’s credit in this case. These involved the level of impact and the circumstances of the accident and it was also submitted the plaintiff’s prior back condition was greater than set out in his affidavits.[62]

[62]        T66

234Counsel for the plaintiff submitted the attempt to say the plaintiff had been evasive or had hidden his past history did not really stand critical scrutiny.  It was clear he had disclosed longstanding issues and these were noted by Professor Bittar.[63] 

[63]        T69

235In my view, the plaintiff somewhat overstated the severity of the accident impact and also his level of pain immediately thereafter. His delay in seeking medical treatment and his ability to earn more in the post-accident season than those immediately before was inconsistent with a significantly increased level of back pain consequent upon the accident.

236The plaintiff also understated the extent of his pre-accident back problems in his affidavit. Further, he gave the impression in his affidavits and histories to examiners that it was only after the accident and as a result thereof, that he had to change to supervisory work when he had in fact been doing that role in the two years before the accident.

Accident circumstances

237Counsel for the defendant submitted it was a moderate impact and any claimed bruising in the accident should be ignored.[64]  Any bruising seen five months later when examined by Dr Kehinde could not have come from the accident and the question had to be asked, where did it come from?[65] 

[64]        T64

[65]        T65

238While it is not open to speculate in this regard, I do not accept the plaintiff suffered  any bruising as a result of the accident impact.  The mechanism of injury with a rear impact with the plaintiff being thrust forward into the steering wheel, was not consistent with any lumbar bruising and the plaintiff himself gave conflicting evidence as to whether he was aware of any bruising soon after the accident.

239Further, the position of the plaintiff’s car is relevant to the level of possible impact with the other car turning out of the lane way next to the shop. 

240The plaintiff has given different descriptions as to where his vehicle was on Deakin Avenue outside the shop when the collision occurred.  His affidavit was silent in this regard.  He initially agreed his car was in the second or third bay from the lane exit.  In re-examination, he agreed his car was parked in the first bay near the lane as shown on the police diagram but later identified his car was parked as shown in the investigator’s photograph 3 bays, down from the lane exit.

241The police report sets out the speed at the time of collision was 5 to 10 kilometres per hour with the other driver describing his car travelling at walking pace. The plaintiff paints a different picture, adopting the words he said were spoken to him by the police at the scene that the other driver was “hooning” around and had overcorrected his car.

242Whatever the speed at impact, it is clear however the front left side of the turning car collided with the right rear side of the plaintiff’s vehicle as noted in the police report.  The plaintiff’s vehicle was capable of being driven from the scene and the damage thereto was described in the police report as “moderate”.  The other driver described the boot being dented and pushed in with damage to the middle to right-hand rear panel.  That damage to the plaintiff’s twenty-five year old Ford was such that it was written off and he received a $2,200 insurance payout.

243Taking all this evidence into account, in my view, the impact was modest at its highest. 

Consequences

244The main issue in this application is the extent of any accident-related spinal impairment as at the date of hearing, particularly in light of what became apparent during the hearing was, in my view, a significant pre-existing back problem. 

245While the plaintiff briefly deposed to an earlier back problem in 2014 and mentioned it to Professor Bittar and Professor Laidlaw, upon a perusal of the Tristar clinical notes and also the plaintiff’s viva voce evidence, for at least 5 years prior to the accident there had been a significant ongoing problem with the plaintiff’s back, interfering with his work and requiring treatment .

246Although counsel for the plaintiff submitted the medico-legal support for a contribution of the accident to the plaintiff’s current predicament is strong,[66] to a large extent, examiners who have been supportive of the plaintiff’s application have based their opinion on incomplete histories and incorrect information about plaintiff’s work capacity prior to the accident. Medical opinion to a large extent was also based on an acceptance of a history that the hoon driver “slammed” into the plaintiff’s stationary vehicle.[67]

[66]        T72

[67]        T13

247As Chernov JA said in Dordev v Cowan & Ors,[68] in this type of case, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

[68] [2006] VSCA 254 at paragraph [14]

248Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim, must be looked at in the light of my views as to his credit.

249Any accident-related work consequences became clearer during the hearing, with the plaintiff’s viva voce evidence being somewhat different to his affidavit evidence.

250The plaintiff agreed in cross-examination that he had essentially “broken down” – the words of counsel for the defendant – at the end of each picking season from 2012 to 2014 inclusive and had to see his doctor for treatment and medication and needed to rest.[69]  He also agreed pain and difficulties with his back continued right through to the date of the accident.  The Tristar notes set out he saw his general practitioner on two occasions in 2015 for back complaints, and back exercises were discussed. 

[69]        T65

251The plaintiff’s earnings in the two years pre accident were minimal, with $2,500 in the 2014-2015 financial year and only $652 in the 2015-2016 financial year, the year before the accident. 

252While there was some attempt by the plaintiff to say that pre accident, he was not declaring all his income and was paid some cash, even on his account, cash payments were only about $3,000, in addition to the $652 that he had declared in the year before the accident.

253Further, the plaintiff agreed a number of times during the hearing that post-accident, he did all the work that was available to him and he earned significantly more in the two years he worked after the accident than he did before.

254It is also relevant that the plaintiff continued to work until his car broke down at the end of 2017 and that he had intended to work in 2018.  He tried to explain that he stopped work because of a worsening in his condition in 2018 but there was no medical evidence to this effect.  He had already been referred to neurosurgeon, Mr Vellore, and continued working thereafter in April 2017.  No worsening was noted by his general practitioner in late 2017/early 2018.  Problems with housework were first noted by the plaintiff’s general practitioner in April 2019.

255The plaintiff worked the full season of 2016 ($5,500) and 2017 ($11,234) after the accident, then his car broke down and he could not then do further work.[70]  His earnings after the accident were significantly greater than in the years immediately before.[71]

[70]        T66

[71]        T67

256Further, a reading of the plaintiff’s affidavits and his history to doctors gave the impression that it was only after the accident that as a result of his back injury, he had to do supervisory work because fruit picking became too heavy for him.  As the plaintiff stated in cross-examination, he had in fact been in a supervisory role for a couple of years before the accident, with no picking duties- but some limited manual tasks-  and there was no change in his duties thereafter.

257While Dr Menz’s report appeared on the face of it to be supportive of the plaintiff’s application,[72] concluding there was a direct relationship between the accident and the plaintiff’s injuries, he did not know about this pre-accident work situation, or the extent of the plaintiff’s work post-accident.[73]

[72]        T9

[73]        T69

258Although he was provided with the Tristar pre-accident clinical notes, he made no mention of them in his reports.  Moreover, he noted in his first report that the plaintiff stated “prior to this accident he had never had any back problems before”. Dr Menz simply noted the 2017 CT scan showed pre-existing mild to moderate degenerative changes which would have predated the accident.

259Further, when later provided with the reports from Professor Laidlaw and Professor Bittar which mentioned these earlier Tristar entries, Dr Menz made no reference to them in his supplementary report, simply noting he had read both reports and the contents thereof did not cause him to alter his opinion in any way.

260Dr Menz was also unaware of the plaintiff’s severe back pain driving to Adelaide and the other later exacerbations reported to Professor Laidlaw.

261While Professor Bittar was aware the plaintiff had intermittent low back pain before the accident and had the Tristar notes, he thought the plaintiff was able to work in an unrestricted manner as a picker pre accident.  He was not told of the plaintiff “breaking down” at the end of the picking seasons leading up to the accident.[74]  Like Dr Menz, he was also unaware of the severe exacerbation driving to Adelaide and the other later exacerbations.

[74]       T66

262These gaps in history and inaccuracies undermine Professor Bittar’s conclusion that the accident is responsible for the overwhelming majority of the plaintiff’s current pain, disability and requirement for treatment.

263While Professor Laidlaw acknowledged the contents of the 2011, 2012 and 2013 Tristar clinical entries, he noted he could find no records of further episodes between 2013 and the accident.[75]  Therefore, he was unaware of the attendances in 2014 and 2015 for back pain and the 2014 lumbar x-ray.  

[75]        He is unaware of 2014 entries and x-ray

264He also had the incorrect history that the plaintiff could no longer work as a fruit picker post-accident, being unaware he had ceased working in this role two years before the accident.

265Even on this limited history and being told by the plaintiff of severe exacerbations on the drive to Adelaide in November 2016, a further progressive exacerbation at work in October 2017 and three more severe exacerbations thereafter, he thought the accident is only responsible for a relatively small part of the plaintiff’s current symptoms only.

266In my view, any accident contribution to the plaintiff’s present condition is minor and he has not established that any aggravation consequences are serious in terms of pain, treatment or work.

Other activities 

267The plaintiff last played competitive eight-ball in 2006, so for ten years before the accident he was not competing.  He was then playing socially and continues to do so.  Therefore it cannot be said that any accident-related interference with his sport is “serious” as he had not played other than socially for the ten years prior in any event.

268While the plaintiff claims that he has problems standing for prolonged periods at the AFL football, he was still able to travel to Melbourne and attend matches in the 2018 and 2019 seasons.

269He complains of difficulty sleeping due to back pain and has to adjust his bedding but he takes no medication  to help him sleep.

270There are some restrictions in the plaintiff’s ability to do housework and gardening but these would have been present to some extent pre accident given his difficulty doing heavier duties on the fruit block.

271Taking into account all the evidence, I am not satisfied that any aggravation consequences are “serious” and meet the test in Humphries and Anor v Poljak.[76]

[76] [1992] 2 VR 129

272Accordingly, the application is dismissed.

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