Mir Shafiee v Transport Accident Commission
[2016] VCC 2007
•22 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-05896
| AMIR REZA MIR SHAFIEE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 August 2016 | |
DATE OF JUDGMENT: | 22 December 2016 | |
CASE MAY BE CITED AS: | Mir Shafiee v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2007 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the spine – range case
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Richards v Wylie (2000) 1 VR 79; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr P Bourke | Slater & Gordon Ltd |
| For the Defendant | Mr A Moulds QC with Ms S Manova | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff 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 which occurred on 7 September 2011 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the spine.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon five affidavits, three affirmed by the plaintiff on 11 August 2014, 30 September 2015 and 1 July 2016. In addition, the plaintiff relied upon an affidavit of his sister-in-law, Azar Karanbakhsh, and a friend, Amir Yosef Sabeti, both affirmed 6 July 2016.
7 The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff, however, I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
The issues
8 Counsel for the defendant informed the Court that the following issues in this case were:
·first, it is a range case, namely, the consequences of the physical injury to his spine do not meet the very considerable test;
·second, the operation of Richards v Wylie[1] does not apply, as contended by counsel for the plaintiff in opening submissions; and
· third, if against the defendant in relation to “the very considerable” issue, the plaintiff has not demonstrated that any consequence flowing from the injury that might be said to be very considerable, are physical consequences as opposed to psychiatric consequences.[2]
[1](2001) 1 VR 79
[2]Transcript (“T”) 96, Line (“L”) 6
Video surveillance
9 The defendant conceded that the plaintiff had been under surveillance for 186 hours:
· On 29 and 30 September 2014 and 1 and 2 October 2014, the plaintiff was under surveillance for a period of 34 hours, and 17.55 minutes of video was obtained.
· On 12 and 20 May 2015, the plaintiff was under surveillance for a period of 10 hours and no video was obtained.
· On 28 and 31 August 2015 and 2, 9 and 18 September 2015, the plaintiff was under surveillance for a period of 58 hours, and 5.34 minutes of video was obtained.
· On 1, 4, 9 and 21 June 2016, the plaintiff was under surveillance for a period of 30 hours, and 8.25 minutes of video was obtained.
· On 1, 2, 3 and 4 March 2016, the plaintiff was under surveillance for a period of 54 hours, and 36.3 minutes of video was obtained.
10 In cross-examination, the plaintiff was shown the abovementioned surveillance and counsel for the defendant questioned him on its contents. I have summarised the relevant surveillance and the plaintiff’s evidence below.
11 On 29 September 2014, the surveillance shows the plaintiff getting out of his white van dressed in painting gear. In cross-examination, he agreed with counsel for the defendant that he was attending a residence in Pakenham to perform painting and decorating work.[3] He ascends and descends steep stairs to the residence a number of times without apparent difficulty and without assistance. Twice the plaintiff climbs into the van holding onto the van door. He exits the van, closes the door and walks around the other side of the van to open the sliding door. The plaintiff and a colleague retrieve something each from the van and then walk around to the boot and the plaintiff opens the van boot. The plaintiff holds something under his right arm and again descends the steps to the residence.
[3]T60
12 On 30 September 2014, the surveillance shows the plaintiff bend slightly to pick up an item, which he identified in cross-examination as “insulation”.[4] He lifts the insulation over his right shoulder and carries it alongside his colleague. In cross-examination, the plaintiff agreed that the insulation he lifted weighed about 2 kilograms.
[4]T61
13 On 1 October 2014, the surveillance shows the plaintiff exit the van. He walks to the other side of the van and retrieves an item from the van. He carries those items in both hands and ascends the steep steps to the residence. He returns empty handed, descending the stairs to his van. He leans inside the van and retrieves a large item, which the plaintiff identified as a vacuum cleaner in cross-examination.[5] He carries the vacuum cleaner on his own while ascending the stairs to the residence.
[5]T61, L5-8
14 The plaintiff agreed that on 29 September 2014 he worked 7.5 hours, on 30 September 2014, he worked 6.5 hours and on 1 October 2014, he worked a full-day’s work.
15 Counsel for the defendant submitted that the plaintiff had no trouble getting up and down the stairs or steps at the front of the property as shown in the abovementioned surveillance. The plaintiff responded that he “weared (sic) some things to fix my knees”[6] for him to move easily. Counsel for the defendant also suggested that the plaintiff appeared to have no trouble getting into and out of the van on the surveillance. The plaintiff said:
“… if you see each time the handle on the van door, that’s helping me. If you wanted to put your hand in my hand I can show you my hand, how powerful than yours one. It’s my knees and my back made my hand very powerful, so I lift It up by hand and sit on the seat.”[7]
[6]T61, L24-25
[7]T61, L27 – T62, L1
16 In re-examination, the plaintiff said that getting in and out of the van causes him trouble because the van was higher than other cars, so he has to:
“… hold the handle in there was my left hand and I have to hold the right hand to the wheels. So I’m taking myself with my hands inside of the van and then I release and sit.”[8]
[8]T89, L4-7
17 On 1 March 2016, the surveillance shows the plaintiff at a petrol station filling up his car with petrol. He uses a squeegee to clean the whole of the back car window. He uses his right arm to pour a watering can of water over the top of the car. He drives away in his car.
18 On the same day, another disc of surveillance shows the plaintiff at a Coles supermarket. He gets into his car and drives away. Later, the plaintiff is seen running down the sidewalk to the parking meter. Once he has obtained a ticket from the parking meter, he then runs along the sidewalk and back to his car to display the ticket on his dashboard. He leaves. Counsel for the defendant submitted this surveillance showed the plaintiff run, and asserted that the plaintiff specifically stated he could not run like that in his affidavit. During cross-examination, Counsel asked:
Q:“Mr Mir Shafiee, that was a picture of you running in that film, wasn’t it?---
A:I didn’t run. I just walked fast.
Q:Walked fast?---
A:That’s what I’m saying to that one.
…
Q:I see. So you would describe that film was showing you walking fast?---
A:Yes.
Q: You obviously had to get yourself to the parking meter to pay, is that right?---
A: Yes.
Q: And then pay and get up to see the doctor, is that right?---
A: Yes.
Q: Were you hurrying at the time?
A: Yes, I was hurrying, yep.”[9]
[9]T71, L27 – T72, L3
19 In re-examination, the plaintiff said he could not run more than 20 metres.[10]
[10]T89, L17
20 As to the 1 March 2016 surveillance, counsel for the defendant submitted that the plaintiff had dropped off his two children at school, attended a private premises in Glen Iris to perform painting work and then attended a medical appointment with Mr Kierce in town before returning to Glen Iris. Then, the plaintiff went to the supermarket before picking up his children.[11] The plaintiff agreed that this was a fair summary of his day’s activities.
[11]T67
21 Counsel for the defendant indicated that the plaintiff told Mr Kierce that he had neck pain when driving for more than fifteen minutes. The plaintiff agreed that it was more than fifteen minutes to get from Glen Iris to the medical appointment.[12] As to the absence of the special pillow he told Mr Kierce he used, the plaintiff said to counsel for the defendant that “your cameraman wasn’t too close to me to take a photo”.[13]
[12]T68
[13]T68, L7-8
22 In re-examination, the plaintiff said that he did plastering preparation before attending Mr Kierce.[14] He said the surveillance shows “very light daily work”,[15] but his work was, in fact, much heavier.[16] In fact, he continually had people helping him so that he can rest.[17]
[14]T89 L25 – T90, L1
[15]T90, L10
[16]T90, L11
[17]T90, L18-19
23 In the surveillance dated 2 March 2016, the plaintiff is then seen standing next to his van, retrieving items from the side of his van. He leans into the side of his van for several minutes, occasionally putting down and retrieving items from the ground. He walks around the van and climbs into the front seat.
24 In cross-examination, the plaintiff agreed that he had dropped his children off at school before driving to paint in Glen Iris for a full day’s work.[18]
[18]T72
25 Counsel for the defendant submitted that the surveillance showed various activities undertaken by the plaintiff that showed free movements and “a man who we say looks like anybody else when he walks around and does his bits and pieces …”.[19]
[19]T13, L3-5
26 In all of the surveillance material shown to the Court, I accept that it showed the plaintiff conducting his activities of daily living in an unrestricted fashion. The film showed the plaintiff running approximately 20 metres to a parking metre and then running back to his car to display his parking ticket. I accept the running was for a limited period. Counsel for the defendant submitted to the plaintiff that he was seen running in the film. The plaintiff said he just walked fast, which I do not accept. I accept that he was seen running but it was for a limited distance. I take the view that there was nothing from the surveillance which showed the plaintiff doing anything that he said he was unable to do. I take this into account when assessing the plaintiff’s credit.
Credit of the Plaintiff
27 The plaintiff is forty-two and was born in Iran. He moved to Turkey in 1999 and came to Australia in 2001 as a refugee. The plaintiff gave his evidence without the assistance of an interpreter. His evidence was that he could read English but he was slow. I took the view that he did his best to understand and answer questions asked of him. On occasions, he asked questions of clarification and said he did not understand words. On occasions, the plaintiff’s evidence was confused and occasionally he would correct something he said.
28 Counsel for the defendant made a number of submissions in relation to the plaintiff’s credit and reliability. First, that the plaintiff’s position regarding his right knee condition was inconsistent and confused in his evidence. Counsel for the defendant said that it could not be explained by the fact that English was his second language. Second, that the plaintiff claimed a significant worsening of his seizures post-accident, when he had received extensive treatment for epilepsy prior to the transport accident. Third, that the plaintiff was not truthful when he said he ceased work due to his back and neck pain in February 2012 and not because of a problem with ladders or his right knee.
(a) Right knee injury
29 The plaintiff’s medical condition was complicated by the fact that he had attended two different general practitioner clinics following the transport accident. The plaintiff’s evidence was that the accident occurred on 7 September 2011. Initially, he went home after the transport accident. Later that day, he developed neck and back pain and attended the Casey Hospital where he was examined and discharged with pain-relief medication.
Pakenham Family Health Clinic
30 On 10 September 2011, the plaintiff attended at the Pakenham Family Health Clinic, reporting the transport accident and complaining of pain in his neck, shoulder and body. He was referred for a CT scan of the cervical and lumbar spines, prescribed medication and Panadeine Forte, and provided with a Medical Certificate for work.
31 On 10 September 2011, he underwent a CT scan of the cervical spine:
“Findings:
…
Normal alignment of the spine. No fracture is demonstrated or significant bony abnormality. No gross disc herniation is identified.”[20]
[20]PCB 30
32 On 13 September 2011, he underwent a CT scan of his lumbar spine:
“Conclusion
No acute osseous injury.
At L4/5, there is a left paracentral disc protrusion which narrows the left side of the vertebral canal, distorting the thecal sac and causing compression of the traversing left L5 nerve root. ? symptomatic. If this lesion is symptomatic, and if clinically appropriate, a CT guided epidural steroid injection could be considered for symptomatic relief.”[21]
[21]PCB 32
33 The plaintiff attended that practice on a few occasions, his last attendance being on 1 October 2011, when he reported a:
“… Sore neck and Right shoulder Right shoulder [a] bit stiff.”[22]
[22]DCB 56
34 Prior to the transport accident, the records of the Pakenham Family Health Clinic confirmed that in June 2011, the plaintiff consulted Dr Nikolic, complaining of pain in his knees, hands and elbows. An x-ray of his right knee was performed and he was told that he had mild osteoarthritis in both knees. His last attendance on 5 July 2011, for the knee, was before the transport accident.
St Antony Medical Clinic
35 On 22 October 2011, the plaintiff consulted the St Antony Medical Centre in Pakenham, complaining of right knee pain and right knee effusion. Voltaren was prescribed and diagnostic imaging requested of the right knee.
36 On 25 October 2011, an ultrasound of the right knee was performed and it was recorded that the plaintiff reported “Fell off the ladder and hurt right knee 3 months ago”.[23]
[23]DCB 60
37 On 26 October 2011, the plaintiff attended the Clinic and was advised to stop sport because of right knee effusion.
38 On 15 May 2012, the plaintiff returned and was complaining of right knee pain.
39 On 12 June 2012, the plaintiff returned to the Pakenham Family Health Clinic, where he continued to be treated for his transport accident injury. His reason for returning was “not happy with [other doctor]”.[24]
[24]DCB 56
40 In May 2015, Mr Winterton, physiotherapist, obtained a history that the plaintiff fell from a ladder two months after the transport accident and he could not feel below his abdomen. The plaintiff went to the doctor, had x-rays, where a disc bulge was found and some neck degeneration, as well as some knee and shoulder issues.
41 The plaintiff was cross-examined about whether he fell off the ladder and injured his right knee prior to the transport accident. He agreed that he fell from the ladder but did not agree that he injured his right knee. He said the problem with his right knee was from arthritis.[25] Counsel for the defendant put to the plaintiff that between 1 October 2011 and June 2012, he had not complained to any medical witness of pain in his neck and back until June 2012, when he attended at the Pakenham Medical Clinic. The plaintiff agreed. The plaintiff’s evidence was that he was told by Dr Nasralla, from St Antony Medical Centre, that the pain he was suffering was muscle pain, it would clear up in six to nine months, he should not lift or work on ladders, and he should cease work and driving. The plaintiff’s evidence was that the pain did not cease, so he returned to the Pakenham Medical Centre to consult with Dr Nikolic. The records of the St Antony Medical Centre do not disclose any complaints by the plaintiff as to his back and neck injury following the transport accident.[26] In the plaintiff’s first affidavit, he stated that he suffered injury to his right knee from the transport accident; however, that is not the injury the subject of his claim.[27]
[25]T35; see also DCB 60
[26]T47-48
[27]DCB 9
42 I accept that the plaintiff’s evidence was confused as to the ladder incident. There was no explanation by the plaintiff as to the reason he attended the St Antony Medical Clinic for his right knee pain when he was concurrently attending the Pakenham Family Clinic for his transport accident injury and had already attended the clinic in relation to his knees. I accept the plaintiff fell from a ladder in about July 2011 and injured his right knee. He reported this on 10 November 2011 when having an ultrasound. Ultimately, the plaintiff’s claim is for a loss of body function to the spine. There is no evidence that the knee was in any way related to the transport accident. There was no suggestion that the plaintiff injured his spine when he fell from the ladder.
(b) Seizures
43 The second matter raised by counsel for the defendant was that the plaintiff claimed a significant worsening, post-accident, of his history of seizures.[28] Counsel submitted that the plaintiff was incorrect given the extensive treatment he had in 2009 and 2010.
[28]T99
44 The evidence is that, prior to the transport accident, in November 2009, February and August 2010, the plaintiff was being reviewed by Dr Seneviratne, consultant neurologist, at Monash Neurology, in respect to auras which he had suffered. The consultant neurologist wrote to the plaintiff’s general practitioner in November 2009, reporting that the plaintiff was not fit to drive.
45 In February 2010, the plaintiff was reviewed and it was noted that he had had no further seizures but he had to be completely seizure free for six months before he could drive again.
46 In August 2010, he was again reviewed but had reported three seizures in the same day three months earlier. He was unable to drive for a further three months, when he would be reviewed. The plaintiff’s evidence was that he had not been told he could not drive by his general practitioner.[29] He said that he was driving over that period from September 2009 to late 2010 but not for long distances.[30] His evidence in his affidavit of August 2014 was that prior to the transport accident, he could not recall any seizures for many years.
[29]T21, L15
[30]T22
47 I accept that the plaintiff’s evidence as to his seizures was unsatisfactory.
Ceasing work
48 The plaintiff’s evidence was that he ceased work following the transport accident in February 2012 due to his back and neck pain.[31] There was no medical evidence to confirm that the plaintiff had discussed his neck and back injury with Dr Nasrella or any other doctor at that time. The plaintiff’s evidence was he told the Transport Accident Commission that he had tried to work after the accident. He agreed that in early 2012, he had no treatment. He said he did not know what medical assistance he was entitled to. The plaintiff agreed with counsel for the defendant that, between 10 February 2012 and June 2012, he had no treatment from any doctor in relation to his neck and back.[32] He said that he lived off Centrelink when he stopped work in February 2012.[33]
[31]T43
[32]T45, L16
[33]T48
49 I accept that the plaintiff ceased work in February 2012 because of his spinal pain; however, there was no medical evidence to support the plaintiff’s decision to cease work. However, there is also no medical evidence stating that the plaintiff ceased work due to his right knee or other health problems.
Conclusion on credit
50 In summary, I formed the view that the plaintiff gave confusing and inconsistent evidence but that this was because of his language difficulties and that he appeared to find it difficult to understand the questions put to him by counsel for the defendant. I agree with counsel for the plaintiff that the plaintiff “strived valiantly” to understand and answer questions without the use of an interpreter and give honest explanations.[34] I do not form the view that the plaintiff set out to mislead the Court. I note that he made concessions, namely, that the neck pain improved with physiotherapy. In my view, the plaintiff is a credible witness, but on occasions his evidence was confused.
[34]T131, L17
Analysis of the evidence
51 The current medical evidence was expressed by Dr Nikolic, the plaintiff’s general practitioner, Mr Stephen Doig and Mr Paul Kierce, both orthopaedic surgeons, and the plaintiff’s physiotherapist, Mr David Winterton.
52 There were reports from Dr John Monagle, pain management specialist, and Dr David Elder, occupational and environmental specialist, whose reports were not current.
53 In August 2016, Dr Nikolic diagnosed chronic neck and lower back pain, from which the plaintiff will suffer indefinitely. She was aware the plaintiff had returned to work and said that he would need to rest. She thought lighter work would be more appropriate.
54 Both in February 2014 and May 2016, Mr Doig, orthopaedic surgeon, examined the plaintiff. In June 2014, at the request of the plaintiff’s solicitors, Mr Doig provided an addendum to his first report. He said the material provided did not change his opinion. He said the plaintiff should be encouraged to return to work. In May 2016, he diagnosed soft-tissue injury to the cervical and lumbar spine. He described the plaintiff as being considerably better than when he was examined in February 2014. He accepted that his condition was stable. Mr Doig said the plaintiff had received appropriate treatment, namely, that he had attended a pain management program and returned to work. He did not consider the prognosis as guarded as when he had first reviewed him in May 2014, where he described the plaintiff’s prognosis as fairly guarded.
55 In July 2016, Mr David Winterton, treating physiotherapist, said the plaintiff was physically fit to continue his work full time. He said there may be times when the plaintiff experiences a “pain flare”; however, if his pain is mild and not physically limiting, the plaintiff is safe to continue his work. He said if the pain was intense, he would recommend that he best manage the pain with light activity, a gradual increase in activity, and return to work as soon as possible. He said the plaintiff works in a physical job and will need to maintain a level of conditioning and fitness. He said this was being addressed in physiotherapy via the plaintiff’s gym program. He said, if he maintained his fitness, there was no reason why the plaintiff’s capacity to work would become further limited. Mr Winterton said the plaintiff is currently not self-managing his pain in the most beneficial way. For example he will often take extended periods of rest when experiencing pain. He said the plaintiff’s pain will likely stabilise as his self-management improved.
56 In March 2016, Mr Kierce, orthopaedic surgeon, examined the plaintiff at the request of the defendant. It was his opinion that the plaintiff suffered soft-tissue injuries to his cervical and lumbar spine as a result of the transport accident. He said the plaintiff’s complaints can no longer be explained by his normal physical examination. He said that there was no evidence of the plaintiff suffering from any abnormalities in his shoulder joints or knees. He concluded that any injuries the plaintiff had suffered in the transport accident were now fully resolved. He said it would appear likely that the plaintiff had some pre-existing lumbar spondylosis prior to the accident, but this is no longer affecting his current presentation. He said he could find no evidence that any part of his spine or body exhibited conditions which had been aggravated by the transport accident. He thought that the plaintiff had a psychogenic response to the accident, but noted this was outside his area of expertise.
57 In March 2016, Associate Professor Peter Doherty, psychiatrist, examined the plaintiff at the request of the defendant. He concluded that there was no diagnosable pain disorder present. He is the specialist. Accordingly, I accept his view.
58 As a result of the medical evidence, I accept the plaintiff has a soft-tissue injury to his spine. Given the medical history and the conflicting evidence as to the plaintiff’s right knee, I do not accept that the knee is accident related.
59 Accordingly, I will consider the consequences of the spine.
Pain
60 The plaintiff reported that he has constant back pain that gets worse during the day and as he becomes tired. He needs to keep shifting position to try to remain comfortable. The plaintiff said he is constantly moving and fidgeting, whether he is sitting or standing.[35] In relation to neck pain, the plaintiff said it has improved with further physiotherapy treatment and he gets fewer headaches now. He reported to Mr Doig that he continues to have “some headaches” but said his neck was continuing to slowly “steadily improve”. He reported to Mr Kierce that the neck pain comes on with his driving after more than about fifteen minutes. He has a special pillow to support his head when the traffic stops. He does not report the frequency with which he suffers headaches. The plaintiff reported to Mr Kierce that he suffers severe lower back pain with walking after five minutes, but can stand for a couple of hours, after which time he needs to rest. He suffers with headaches if he drives for more than about fifteen minutes. The plaintiff reported to Mr Doig that he is “driving at this stage and he says that he copes very well with that”.[36]
[35]PCB 118
[36]PCB 119
61 The plaintiff’s evidence was that he tries to avoid using Norspan patches all the time. He takes Nurofen and Panadol every day, sometimes two per day. He takes Mobic twice per week. His general practitioner said he will require analgesia into the future. The plaintiff wears a Thermoskin brace for his back and attends physiotherapy twice per week. The plaintiff’s evidence is that the physiotherapy assists with the pain.
62 I accept that the plaintiff suffers pain; however, I consider the medication and treatment is at the low to mid-range of the scale and is indicative of the level of pain he suffers. Accordingly, I accept the pain is at the low to mid-range of the scale and is a consequence that I can take into account.
Sleep
63 The plaintiff’s evidence is that he wakes due to the pain. He takes Diazepam or a sleeping tablet to help him get back to sleep; however, he did not give evidence as to the frequency with which he takes medication for sleep. I accept that this is a consequence which I can take into account and I consider it at the low end of the range.
Work
64 Prior to the transport accident, the plaintiff was employed as a painter and decorator for a short time in Melbourne. He said that, at the time of the accident, he was engaged in work that was fairly physical and required a lot of standing, bending and lifting.[37]
[37]PCB 11
65 The plaintiff’s evidence is that he has returned to work in 2014, which was following the transport accident. He is currently working for himself and conceded that he earns more than he earned as an employee prior to the transport accident. The plaintiff described his current work duties as follows:
“The painter is – who you talking about painter is the guy going to do preparation from beginning until end of the job, but my job is going to repair the house from the damages, so damages from robbery or damages from weather. So my job is first then I go there – I have to go and fix the part of the plaster or door or what and then wait to be this part getting be dry. So that time is between 20 minutes to five hours. Most of the time, I’ve got this barrier between my jobs. So there I have waited or maybe leave it for next day. If it’s afternoon, I have to leave it, but if it’s morning, is it – I have a big barrier gap between beginning of the work and end of the work and this part, the part I have to charge them my job as well. So then after finish, I do painting. The first coat, undercoat, then you paint it. You have to wait two hours again and my job is not painted one big wall. I maybe painted that much piece of the things. It’s damaged and then I – again, after two hours, I have to paint it again.”[38]
(sic).
[38]T73, L28 – T74, L14
66 The plaintiff’s evidence is that he is working at 60 per cent of his pre-accident capacity and does not work consistent hours.[39] Further, he works more slowly and he can pace himself. He said he does mostly small painting jobs, which are one day or a half-day for which he can charge a day’s work. Sometimes he is asked to quote for larger jobs and declines. Sometimes he works twenty hours per week and, other times, forty hours per week. He said that, on occasions, he has to leave a job in the middle of the day due to pain and is only able to do this because he works for himself. There was no evidence as to how often this occurred. Accordingly, I place less weight upon this aspect.
[39]T78
67 The plaintiff’s evidence was that he does not do any heavy lifting because of his back. He said that this is difficult and he pays someone to lift and clean and to carry drop sheets and heavy items. He can carry things that weigh about 4 kilograms for a short distance, like 10 metres. He said that, prior to the accident, he routinely carried 15-litre tins from a shop to his van and around worksites.
68 The plaintiff’s evidence is that had it not been for the transport accident, he would be earning more than he currently is. He obtains work, which is not as demanding as the work he did prior to the transport accident, but is more lucrative. While I accept that is due to the fact that he is running his own business, the fact is that he is currently better off financially.
69 I accept that his current work is varied from the type of work he did prior to the transport accident and that the work may not be as challenging. Further, he is earning more than he was earning before the transport accident.
70 His general practitioner said his current work as a painter is not the best job for him. Mr Doig reported that the plaintiff reported that returning to work had helped him and he felt much better returning to work. Mr Doig did not suggest his work was inappropriate. Mr Kierce said there were no physical injuries which would prevent him from working. Accordingly, I consider the consequences that he suffers in relation to work are at the low end of the scale.
Forgetfulness
71 The plaintiff said he is more forgetful since the transport accident and his memory seems to be getting worse. He loses tools and he relies totally on his phone to get to places. There was no medical evidence to support his forgetfulness. Accordingly, I do not take this consequence into account.
Household duties
72 The plaintiff’s evidence is that his wife performs most of the household chores as he struggles to do anything after he gets home from work. He said his children are helping more as they get older but he used to assist his wife more before the transport accident. The plaintiff says he tries to wash the dishes at the end of the day. There is no medical evidence to suggest that the plaintiff cannot assist his wife with household activities. I accept he may be tired at the end of the day. I accept this is a consequence I can take into account but I accept it is at the low end of the scale.
Activities with his children and wife
73 The plaintiff’s evidence was that, before the transport accident, his wife had always suffered depression and he was a happy parent who loved to have fun with his children. Since the transport accident, he said that his disposition has changed. He said the children are scared and worried about his personality change. His children play sport but he finds it difficult to watch either of them because he gets upset if he thinks they are doing something wrong. He said that if the children make noise, it upsets him. The plaintiff reported to Dr Nikolic that his mood varies and he gets angry.
74 In her affidavit, the plaintiff’s sister-in-law, Azar Karanbakhsh, deposed that, prior to the transport accident, he would take his family out at weekends and play sport with his children. She said that he has changed since the transport accident as his mood is lower and he is often yelling. Further, that the plaintiff is now less involved in his children’s activities than before the transport accident. He no longer takes his wife shopping and argues with his wife on occasions. In his affidavit, Amir Yosef Sabeti, a friend, said he assists the plaintiff with activities such as moving furniture, completing a tree house that the plaintiff commenced to build for his children and carrying heavy tins of paint. He confirmed that the plaintiff seems cross and cranky at the end of the day.
75 I accept that the plaintiff’s family life has been affected by the transport accident, his disposition has changed, he gets angry and his mood varies. I accept that this is a consequence which I can take into account and is in the middle of the range.
Sporting activities
76 The plaintiff’s evidence was that, before the transport accident, he used to run 5 to 6 kilometres around two to three times per week. He played badminton with his wife most weekends. He no longer runs nor does he play badminton. While the plaintiff was shown to run to a parking meter on video surveillance, I do not accept that that equates with the plaintiff being able to run 5 to 6 kilometres two to three times per week. In her affidavit, his sister-in-law confirmed that he was fit and active prior to the transport accident, going to the gym and practising martial arts. The plaintiff told the Court that he used to take martial arts classes before the accident and that he had not done that since before the accident.[40] He told the court that he hopes to return to martial arts. I accept that a restriction on his sporting activities is a loss and is a consequence of his injury which I can take into account.
[40]T91
Richards v Wylie
77 In accordance with Richards v Wylie,[41] a “serious injury” can have its “seriousness” measured in part by a mental response to a physical impairment.
[41]Supra
78 Counsel for the plaintiff raised the application of Richards v Wylie in their opening submissions but did not pursue it in their closing submissions. Counsel for the defendant submitted that the principle did not apply, but also did not elaborate on this further in closing submissions.
79 Nevertheless, I do not accept that it applies, given this plaintiff’s evidence. Accordingly, I do not accept this is a consequence I can take into account.
Retained capacity
80 In assessing whether the consequences of the work injury are “serious”, Ashley JA, in Dwyer v Calco Timbers Pty Ltd (No 2),[42] stated:
“The significance of what has been lost … may be informed, to an extent, by what is retained.”
[42][2008] VSCA 260
81 The evidence is that the plaintiff has a full range of movement of his lumbar spine. There is no wasting to measurement and he has normal deep tendon reflexes and normal power in the lower limbs. Mr Kierce found the plaintiff’s cervical spine posture was normal, but there was some tenderness to light palpitation in the cervical spine. Both orthopaedic surgeons said the plaintiff was stable. The plaintiff has returned to work. I accept there are some limitations upon the way in which the plaintiff performs his work. To the plaintiff’s credit, he has returned to work in the same field as prior to the accident and is earning more than he was earning prior to the transport accident. The plaintiff retains the capacity to drive his car and maintain his garden.
Conclusion
82 What was in issue was the consequences of the plaintiff’s injuries and whether they meet the test of seriousness for pain and suffering, in that they could be considered “more than significant or marked”, and as being “at least very considerable” when compared with other cases in the range.
83 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[43]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable.”
[43][1998] 1 VR 702
84 Section 93 of the Act was intended to restrict the availability of common law damages to plaintiffs whose impairments were of “very considerable” magnitude.
85 In determining the application, it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[44]
[44]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at paragraph [628] and Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
86 Taking all the evidence into account, I am satisfied that the evidence establishes the plaintiff now has some pain in his neck and back and, in terms of limitation in his sporting activities, he has not returned to martial arts and running. In respect to his domestic activities, he no longer assists his wife with household chores as he did before the transport accident. I take into account that the plaintiff is receiving limited treatment and his medication requirements are at the low to medium end of the scale.
87 When these consequences are balanced with what the plaintiff has retained, I am not persuaded, on the balance of probabilities and in light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept the plaintiff suffered a physical injury to his spine in 2011. I accept that injury has had consequences to him which are considerable, but I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked”, and as being “at least very considerable”. Accordingly, I dismiss the application.
88 I will hear the parties on costs.
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