Mitchell v Transport Accident Commission

[2014] VCC 1882

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No.  CI-13-01079

JUSTIN MITCHELL	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:	11 and 12 August 2014
DATE OF JUDGMENT:	19 November 2014
CASE MAY BE CITED AS:	Mitchell v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2014] VCC 1882

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:                 Damages – transport accident – serious injury – impairment of the spine and psychiatric impairment

Legislation Cited:       Transport Accident Act 1986, s93(4)(d)

Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis (1998) 3 VR 833; Turner v Love& Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd (2005) VSCA 227; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436

Judgment:  Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C W R Harrison QC with Ms S A Lean	Slater & Gordon Ltd
For the Defendant	Ms J A Dixon QC with Ms G J Cooper	Solicitor to the Transport Accident Commission

HER HONOUR:

1 This 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 transport accident”) which occurred on 16 July 2008 (“the said date”).

2 Section 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.”

3         

The 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”. 

4         The body function pursuant to subparagraph (a) relied upon by the plaintiff is the spine.

5         The 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.

6         The 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: see Richards v Wylie.[1]

[1](2000) 1 VR 79

7         In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries & Anor v Poljak.[2]

[2][1992] 2 VR 129 at 140-1

8         In the alternative, there was an application pursuant to ss(c) for psychiatric impairment relating to a Chronic Pain Syndrome (“CPS”).

9         The judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[4] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

[3][1998] 3 VR 833

[4](1995) 21 MVR 314

10        Winneke P, in Mobilio,[5] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

[5]Mobilio v Balliotis (supra)

11        I accept that a CPS can result in impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[6]

[6][2005] VSCA 227

12        The plaintiff swore two affidavits.  He gave viva vice evidence and was cross-examined.  He also relied on an affidavit sworn by his wife, Sheridan Mitchell.  Dr Jensen was required for cross-examination.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

13  The plaintiff is presently aged forty, having been born in June 1974. 

14  The plaintiff had some low back pain as a teenager as a result of playing cricket.  He had physiotherapy and recovered well.

15  Having completed a horticultural apprenticeship, the plaintiff worked as a landscape gardener for six to seven years in a physically demanding role but did not have any problems with that work.

16  In about June 1998, at the age of twenty-four whilst working in Western Australia, the plaintiff suffered a low back injury lifting a bowling green mower.  (“the 1998 incident”).[7]

[7]Transcript “T”12

17  The plaintiff went off work and spent the next six months in Western Australia.   He then moved back to Victoria and lived in Geelong.

18  The plaintiff lodged a compensation claim in relation to the 1998 incident.  The claim was initially denied and he was put on a disability pension.  He ultimately cleared about $45,000 from settlement funds in 2004-2005.[8]

[8]T14

19  When the plaintiff moved back to Victoria, his general practitioners were Dr Marshall and Dr McKeegan.  The plaintiff had physiotherapy and acupuncture treatment and he underwent investigations which he believed revealed bulging discs in his back. 

20  The plaintiff agreed that when he saw Mr Carey, orthopaedic surgeon, in 1998 he complained of low back discomfort with leg tingling and numbness and marked restriction in daily and sporting activities.  Mr Carey then advised that surgery was not an option.[9] 

[9]T17

21  In 2002, the plaintiff was referred to Mr Southby, neurosurgeon, who gave him similar advice about surgery.  Mr Southby told him that he had a light work back, as other doctors told him at the time. 

22  The plaintiff disagreed that at that time, he had permanent disabilities and could not do any sport.  He had had advice from doctors to be active and care for himself and they were quite happy for him to go surfing, but his sporting activities were reduced.[10]

[10]T18

23  The plaintiff regularly attended Dr Threlfall.  The plaintiff agreed he told Dr Threlfall in 2002 that he was pacing his duties and that he had problems with prolonged posture.  Dr Threlfall provided WorkCover Certificates for modified duties.

24  The plaintiff began seeing Dr Jensen, musculoskeletal specialist, in 2004.  In May that year, Dr Jensen gave him prolotherapy injections for chronic back pain.[11]  The injections did not really give him any relief and were painful.[12]  The plaintiff also had facet blocks from another practitioner.

[11]T20

[12]T22

25  At that time, the plaintiff was doing a part-time course in natural resources at Gordon Institute, but he realised, because of the manual nature of the potential work in a role such as a posthole digger, he would not be able to work in that field.  He did only about half of the two-year course.[13]

[13]T21

26  The plaintiff then retrained and began work as a youth worker, studying a Bachelor of Science degree at the Australian Catholic University.  He worked for Jesuit Social Services part time and then had a placement at Berengaria School in Glen Waverley (“the school”).  He advised DSS of his income and his pension was adjusted accordingly. 

27  The plaintiff agreed, whilst working with Jesuit Social Services in early 2003, he was suffering a lot of back pain as noted by his doctor.  He did not finish his degree, doing two of the three year course.  He was offered a job at the school whilst doing a placement without being fully qualified, working four days a week as a youth worker in a contract position for about twelve months during 2004.[14] 

[14]T23

28  The plaintiff agreed he had episodes of back pain over the time at the school.  He probably had some time off.  He stopped working there because he and his wife decided to move to Geelong to raise their family.[15]

[15]T25

29  The plaintiff agreed that he was having problems with sleep in January 2004.  He was getting relief from chiropractic treatment in March 2004 for sudden severe low back pain suffered whilst at school.[16]  The plaintiff agreed back problems were continuing quite substantially whilst in that job.

[16]T26

30  The plaintiff was managing and there had been episodes of pain and suffering at that time which he discussed with Dr Threlfall.[17]

[17]T27

31  Within six months of the move to Geelong, the plaintiff received his payout from his 1988 injury.  In July 2005, he used this money to set up a bar restaurant business, the Tannin Lounge (“the bar”). 

32  The business was a shell and the plaintiff employed tradesmen to set it up.[18]  He certainly could not do any electrical or plumbing work.  Another friend did the plasterwork.  The plaintiff did not help with the painting and his wife did the tiling.  He did not like doing those sorts of tasks.[19]

[18]T28

[19]T29

33  The plaintiff and his wife employed people to renovate the house which they purchased in Belmont before starting the business.  The plaintiff did not do a huge amount of work on the renovation because he was not interested in doing so.[20]  He did not have the skills to help wire or do other work in the house.  He had lots of mates who were tradesmen.

[20]T30

34  The plaintiff agreed he did not do work on the house because of his severe back pain and he was not interested in that type of work.[21]  He liked to potter in the vegetable garden and had been advised by the doctors to do things and pace himself.[22]

[21]T32

[22]T30

35  The plaintiff confirmed he did not do a lot of hands on work at the bar, although Dr Jensen noted in July 2005 there was a lot of manual work.  At the time he started in the bar, the plaintiff spent a lot of time on his feet.[23]  He took things in and out of the bar and set up furniture.  It was more manual work, relatively speaking, than youth work.[24] 

[23]T85

[24]T83

36  The plaintiff did not think he had ever worked 40 hours in a week since the 1998 incident.  He worked a couple of hours at the bar on a Sunday and during the week he did pays and invoices and a couple of hours of stock runs.  The bar was open for six hours on Wednesdays and Thursdays so the plaintiff worked about 20 hours per week.

37  The bar was initially open from Wednesday lunch time till Sunday and the business employed half a dozen staff.  The plaintiff got to the point where he could employ a manager to do the later hours to 1.00am. 

38  When the manager was employed, the plaintiff worked 15 hours a week because he had a bit of bookwork and invoicing.  His hands on work involved pouring wine occasionally and he sat around listening to customers’ stories.  It worked quite well; the plaintiff did not have to do a lot of physical work.  He would be on site and organising functions.[25]  He then stopped the lunchtime trade and went to work 4.00pm and set up. 

[25]T37

39  In March 2008, the plaintiff sold the business because of the long and irregular hours, particularly as it interfered with his family life and being with his three young children.  Apart from that, the plaintiff was physically able to undertake the work associated with the business. 

40  The plaintiff agreed he had drunk a bit when he was working in the bar but did not think his drinking was out of control.[26]

[26]T39

41  The plaintiff’s wife obtained work and it was decided that he stay at home looking after the children in the short term and then they travel in their caravan for a while before again commencing to operate a café bar restaurant in the Geelong area.[27]

[27]T41

42  Basically the business had been operating at a loss but the plaintiff thought one year, there was a profit of about $1,000.[28]  He thought the business was sold for a profit, with $25,000 being split between him and his wife.

[28]T38

43  The plaintiff and his wife did not have to sell the business, they wanted to.  He wanted to open up more of a daytime venue so he could work days and be at home with his family at night instead of “being sort of the vampire of a ship that comes in the night”.[29] 

[29]T65

44  The plaintiff’s house was zoned ‘Business’ and it was going to be his café.  It was well situated, over the road from the medical practice in Rosslyn Road.  The house now has three businesses operating in it.[30]

[30]T65

45  The plaintiff agreed he had told doctors, having sold the bar, he wanted to become a househusband and spend more time with his kids.  He agreed running the bar was a bit stressful but he and his wife had managed to survive for three years paying off the mortgage.  She was able to do a bit of work and they did their best.  After the transport accident, things changed.[31]

[31]T67

46  After the 1998 back injury but prior to the transport accident injury, the plaintiff had some limitations but he remained active.  During the summer months in 2007 and 2008, he played social tennis with his brothers and his wife.  The previous year, he was having a hit of tennis, maybe once or twice a year, but he had more of a hit of golf.

47  The plaintiff was a member of the Queens Park Golf Course and played golf regularly.[32]  He was a social player and joined Queens Park in mid 2005/2006 playing once a week for about twelve or eighteen months but stopped because of his work commitments at the bar. 

[32]T103

48  In 2006, the plaintiff played cricket for his brother’s team at East Belmont when they needed someone to fill in.  He played a few games in the 2006-2007 seasons.  It was fun, not serious cricket.  The plaintiff agreed he was too busy to do any significant exercise or sport because of the bar. 

49  The plaintiff also surfed a couple of times a week if he had time.

50  The plaintiff agreed he was filmed surfing for two hours when his 1998 incident claim was on foot.  He surfed to his own ability after that injury.  He was not as good as he used to be.  He changed to a smaller Malibu board.[33]  He would not have been a “dawn patroller” at that time.  After the 1998 incident, he could surf big waves but he definitely changed his style.  Absolutely he could surf but he was not as good as he used to be.[34]

[33]T19

[34]T19

51  Prior to the transport accident, the plaintiff was a social person and he attended functions with friends and family.  He was also a member of the Geelong Football Club and regularly attended club matches locally and also drove to Melbourne to watch games.

52  At the time of the transport accident, the plaintiff was not working.  He was in receipt of a disability support pension but his back problems, although still present, were under control.  The back problems he was then experiencing might have made him unfit to resume manual work but they would not have prevented him from operating the type of business he operated between July 2005 and March 2008.

53  The plaintiff confirmed he had seen Dr McKeegan for lower back problems in 2006.[35] He agreed he was probably doing something physical with the renovation of his house in February 2008.  He told Dr McKeegan about a fall from a work bench at home in April 2008 when he slipped and hit his ribs.[36] 

[35]T59

[36]T60

54  The plaintiff agreed he had seen Dr Harrison before the transport accident because he was feeling a bit flat, and he was prescribed Xanax.[37]  He agreed he had had depression and insomnia in April 2008 and was prescribed Zoloft.  He initially said he was tired and struggling with the bar but then accepted the bar had been sold by that time and he was obviously not feeling well.[38]

[37]T61

[38]T62

55  The plaintiff agreed he was struggling a bit with depression both in 2006 and also in 2008 prior to the transport accident.[39]  During that period, he had had tablets “here and there” but he was not on anything stronger than Endone.  He had Valium “here and there” and did not take much at all and it was prescribed a couple of times.[40]  The plaintiff agreed Dr McKeegan prescribed Endone in April 2008.[41]

[39]T64

[40]T65

[41]T58

56  The plaintiff would not say the 1998 work injury was permanent and severe; it was difficult but he was able to rehabilitate and retrain and get over that side of things.  He was pretty resilient.[42]

[42]T104

The transport accident

57  On the said date, another vehicle attempted to execute a u-turn in the path of the travel of the plaintiff’s vehicle, causing a collision (“the transport accident”).

58  As a result of the transport accident, the plaintiff sustained injury and, in particular, he experienced a considerable increase in back pain.  He has subsequently also suffered from a psychiatric condition, variously diagnosed as Chronic Post-Traumatic Stress Disorder (“PTSD”), Chronic Adjustment Disorder with Depression and Anxious Mood, Chronic Pain Disorder, Syndrome and Depression.

59  The plaintiff was travelling at 80 kilometres per hour when the transport accident happened.[43]  He did not lose consciousness – “Things went a bit black and white”.  He was probably wrong when he told Dr McKeegan he was travelling 50 to 60 kilometres per hour because he was pretty sure the speed limit was 80 and he had recently Googled it.[44]

[43]T50

[44]T57

60  The plaintiff was not taken from the transport accident scene by ambulance.  At the scene, the ambulance officers did not ask him much about the accident circumstances.[45]  

[45]T51

61  The plaintiff called a tow truck but he was told his car could not be towed and he actually drove it in first gear back to Geelong and went straight home.  He saw Dr McKeegan the next day at the clinic over the road from his home.

62  The plaintiff had not seen Dr Threlfall at that stage for about two years.  He had probably seen Dr Jensen about a year earlier.

63  Dr McKeegan arranged investigations, including MRI scans.  The plaintiff was referred for physiotherapy which he underwent for a prolonged period of time.

64  When the plaintiff first saw Dr McKeegan, he thought he was all right and he was put on painkillers.  He felt the pain had subsided.  The plaintiff had already probably played down his condition at the start.  The symptoms were not particularly bad at that point.[46]

[46]T68

65  The plaintiff deposed he was in extreme pain and suffered an adverse psychological reaction.  Within a month of the transport accident, he commenced self-medicating with illicit drugs, including cocaine and amphetamines.  He hid the substance abuse from his parents and his wife.  He had not taken illicit drugs while running the bar.[47]  He had only used marijuana in earlier life, not drugs.[48]  Illicit drug use was short-lived; probably up until about March 2009.[49]

[47]T73

[48]T74

[49]T75

66  The plaintiff was having a lot of nightmares after the transport accident.[50]

[50]T112

67  Post-accident, medication including Cipramil, Epilim, Endone, OxyContin, 100 milligrams per day, Panadol and Rani No 2 was prescribed.

68  When it was suggested the plaintiff did not report the transport accident on an ongoing basis in attendances with doctors, he explained he had already told Dr McKeegan.  He was self-medicating with illicit substances at that time and was not telling anyone anything.  He was “not sort of feeling much pain about anything.”  He was not feeling back pain using the drugs.[51]

[51]T69

69  The plaintiff deposed he returned to Dr Jensen, who advised him the transport accident had resulted in a significant aggravation of his pre-existing low back problem and a mid back problem.  The plaintiff developed what he had been told was neuropathic pain, especially in his leg. 

70  In December 2008, the plaintiff told Dr Jensen he was self-medicating.  He agreed he did not tell Dr Jensen about the transport accident at that time.  He denied telling Dr Jensen he was struggling with low back pain for twelve months since he sold the bar, as Dr Jensen had noted.[52]

[52]T86

71  Dr Jensen recommended Norspan patches.  He referred the plaintiff for an MRI scan to confirm there was no growth on his spine.[53]  When told there was no growth shown, Dr Jensen asked the plaintiff if there was anything else and that was when he told him about the transport accident.[54]  He was pretty sure he must have raised it with Dr Jensen because he was pretty sure he got a referral because of the pain from the impact in the transport accident.[55] 

[53]T87

[54]T89

[55]T90

72  Dr Harrison had not been any help and was critical of the plaintiff and had him in tears.  On the last examination, Dr Harrison called the plaintiff “one of those people”.[56]  The plaintiff then drove up the highway on the wrong side of the road in an attempt to kill himself.[57]  The plaintiff left Dr Harrison because he was rude to him and made him feel “about an inch tall”.[58]

[56]T81

[57]T70

[58]T81

73  The plaintiff did not tell any doctors about the transport accident until he spoke to Dr Jensen in March 2009.  The plaintiff could not remember if he told Dr Harrison about the transport accident.[59]  Dr Jensen must have known of the transport accident by referral letters.[60]

[59]T77

[60]T79

74 The plaintiff agreed in early 2009, there was a lot of stress because of financial and marital issues. He confirmed separating from his wife at various times,[61] and there being an intervention order against him.[62] After a year together, in January 2014, the plaintiff had to move out again.  He had been trying in the last few years on and off to reconcile.[63]

[61]T46

[62]T48

[63]T49

75  Ultimately, after a two-year wait, in 2010, the plaintiff underwent a course at the Geelong Pain Clinic which had been of benefit.  He no longer took illicit drugs or strong painkillers that he used to take.  The “Adapt” program which he undertook assisted in self-managing pain.

76  As of May 2012, the plaintiff had neck pain but it was not nearly as severe as his mid back or low back pain.  The back pain was constant and exacerbated by even moderately strenuous activity.  It adversely affected his quality of life and ability to engage in a variety of recreational and domestic activities.

77  The plaintiff had been unable to return to work as had been his plan.  He was unable to obtain a solid night’s sleep on account of his back pain and he was restricted in his ability to engage in sexual relations with his wife due to his back pain. 

78  The plaintiff had attempted suicide on two occasions and had been consumed by suicidal thoughts since the transport accident.  He had suffered panic attacks and continued to be very nervous when travelling in a car.

79  The plaintiff continued to experience limitations in the movement of both wrists and his ability to weight bear on those joints.  At that stage, he took Cipramil, 20 milligrams a day, and about six Panadol a day.

80  In his affidavit sworn in July 2014, the plaintiff described low back pain radiating into his right leg, and numbness on the outside of his calf.  At times, he does not have full control of his right foot and he has difficulty walking.  Further, he has a burning sensation in his feet if he stands for long periods.  He also has numbness on the outside of his left thigh.

81  At night, the plaintiff’s leg spasms, which means he struggles to sleep as he cannot get comfortable.  He is often woken by pain and cramps and he often needs to get up and walk about for a while before going back to bed.

82  The pain in the plaintiff’s low back often radiates up to the mid-range of his back.  There is also pain in that area which starts in the mid-range of his back.

83  The plaintiff agreed he had a setback with osteomyelitis in 2012 and it took him a little while to recover but his activities had since increased.[64]  He thought he was “fantastic” after it in comparison to what was three months earlier when he was in hospital; it was amazing.  He definitely had a better look at life after suffering that condition.[65]

[64]T98

[65]T99

84  The plaintiff continues to see Dr McKeegan and also Dr Telvett at the Geelong Pain Management Clinic.  He has recently attended Mr Roy Carey, orthopaedic surgeon, and had a further MRI scan. 

85  The plaintiff presently takes Panadol Osteo every six hours, twice a day.  He also takes Tegretol as an anti convulsant for epilepsy to dampen the path centres.  He takes 200 milligrams of Cipramil twice a day and has taken Endone in the last six months, prescribed by Dr McKeegan.[66]

[66]T107

86  Due to the extent of his symptoms, the plaintiff has not been able to return to work.  In 2011, he commenced a TAFE Certificate IV in Workplace Training and Assessment.  He did a few weeks of the course but “did not survive it”.  He did not like being a student and he agreed that at that time, he was assisting with the children and their activities as much as he could.[67]

[67]T97

87  But for suffering injury, the plaintiff believed that by about 2010 he would have resumed work operating a restaurant, bar or café but the transport accident injuries had prevented him from realising that ambition.  Having worked in that industry, he knew that his present back condition would simply not allow him to return to such work as it involved standing for long periods, working long hours and generally moving from place to place, generally overseeing the operation of the business.

88  In terms of job aspirations, the plaintiff would like to first try and be as good a father as he can and at the moment that is his priority.[68]  Honestly, he did not know how work was going end up.  He would probably have to speak to professionals and seek help.  He thought about retraining and that is why he went to Gordon Institute but he really struggled to connect with the student idea again.[69] He would like to be able to maybe get counselling and assistance but at the moment he has an intervention order against him and he wants to be a better person and that is what he was focussed on.[70]

[68]T99

[69]T101

[70]T102

89  The plaintiff did not know if in the future he was potentially able to do some part-time work fairly soon, but it was not his priority.  He now needed to be safe and look after his children.  If he could get the right help to do it in the future he would.[71]

[71]T105

90  As a result of injuries sustained in the transport accident, in particular those to his thoracic and lumbar spine, the plaintiff has become physically far more limited and he would struggle to play golf or cricket.  He now struggles to surf.

91  The plaintiff confirmed his surfing style had changed and he adapted to what he could do without risk.  He still loves surfing.  He does not do much anymore.  He tried surfing with a foam board about twelve months ago at Ocean Grove with the kids but it was a bit of a battle. 

92  The plaintiff no longer surfs at Thirteenth Beach.  He does not own a surfboard anymore, having sold them all about three years ago.  He probably last went surfing eighteen months ago, maybe two years ago, on someone else’s board.  He tended not to like the beach much anymore.[72] 

[72]T43

93  The plaintiff agreed that he helped out in a surf kitchen at Bells Beach in 2012 or 2011.  He confirmed he volunteered at the surf festival so he could get a free pass.[73] 

[73]T109

94  The plaintiff denied he was underplaying his interest in surfing.  He loved it and if he could be out there on the water, he would be there.  He tried it, pain was difficult, and his ability and balance and everything had changed.  He could not push up on the board because of strength issues in his wrists and he felt a bit inadequate.[74]

[74]T44

95  The plaintiff has only recently started going again to the football in Geelong with his father.  The plaintiff tries to avoid social situations, including simply attending friends’ homes as there are likely to be people asking him what he does or how he is.  If he goes to social functions, even school functions such as concerts, he tends to leave early as he struggles to sit for long periods.

96  The plaintiff had a tinny but since 2012 he has had a Mercury boat, registered in his wife’s name.  They go fishing and he pulls the kids in a biscuit behind the boat, a couple of times in the summer.  The plaintiff last went fly fishing in about 2002.  He liked the outdoors.[75]

[75]T36

97  The plaintiff has had a bike ride recently, having ridden a bit with his children before suffering osteomyelitis.[76]

[76]T104

98  Whilst the plaintiff did suffer from restrictions and pain after his 1998 back injury, these were not as severe and as debilitating as those suffered since the transport accident.  He agreed he had had a low back problem from 1998 and he had suffered pain from it and had been on a roundabout of doctors

Lay evidence

99  The plaintiff’s wife, Sheridan, swore an affidavit in support of his application.  They have been married since September 2003 and have two children together, aged ten and eight.  The plaintiff also has a fourteen-year-old child from a previous relationship.

100  While the plaintiff had pain, he had to be careful with his back prior to the transport accident.  His capacity to work and his enjoyment of life has been devastated by reason of the transport accident.

101  Prior to his transport accident injury, the plaintiff had returned to being an active and social person and for a number of years he had been able to run a bar. 

102  At times, they went on camping and surfing trips and liked to do other outdoor activities such as gardening, fishing and at times, motorbike riding. 

103  The plaintiff was a sociable person prior to the transport accident but that had changed.  They no longer have friends over or have dinner parties and she no longer encourages the children to have friends visit.

104  After the transport accident, the plaintiff has increasingly become difficult to live with.  He was increasingly depressed, anxious and frustrated and at times, he was moody and prone to losing his temper.  His relationship with her and their children had suffered.

105  On or about Christmas 2012, she and the plaintiff separated for about twelve months due to his personality change.  They resumed living together in early 2013, but again separated in February 2014.

106  Prior to the transport accident, the plaintiff was a regular carer of the three children and spent a lot of time playing with them.  This has changed and their son has lost his male role model as the plaintiff spent a great deal of time in bed instead of being active with the children.

107  The plaintiff also used to spend time on household chores such as vacuuming, mopping, cooking, gardening, washing and car maintenance prior to the transport accident.  While he can still undertake some of those activities, they are on a greatly modified scale.  She has observed him to have difficulty with activities that involve bending, lifting, twisting and stooping.  She has also observed him to suffer from increased pain after trying to undertake household chores or play with the children.

Pre-accident investigations

108  A CT scan of the lumbosacral spine was taken on 17 June 1998.  It was reported that in view of the narrowing at L5-S1 on the plain film and the focal central posterior disc protrusion in the presence of the right side of radiculopathy (which was now beginning to affect the left side), the plaintiff would justify an MRI scan.

109  An x-ray of the lumbar spine of 17 June 1998 showed narrowing of the L5-S1 disc space.  The bony neuro spinal canal was capacious.

110  An MRI scan of the lumbar spine of December 1998 showed a developmentally narrow canal and no evidence of neural compression.

111  A discography was carried out on 18 May 2000.  It was said to be a normal study at L3‑4, L4‑5 and L5-S1.

112  A lumbar medial branch block was carried out in May 2004 by Dr Verrills, pain management specialist.

Pre-accident

113  The plaintiff saw Dr McKeegan at Waurn Ponds on 22 February 2008.  It was noted the plaintiff had an exacerbation of back pain in the past few weeks, having overdone it doing up a house for sale. 

114  On examination, the plaintiff was tender across L4 bilaterally.  He was prescribed valium. He complained his legs twitch and both heels burn.  It was noted the plaintiff had previously seen Dr Jensen and Dr Threlfall for back injections and medication. 

115  On 23 April 2008, the plaintiff attended Dr McKeegan, having fallen from a workbench at home, suffering blunt trauma to his chest.  He was prescribed 5 milligrams of Endone.  He attended again on 24 April 2008, when it was noted a chest x-ray was normal.

116  The plaintiff attended Dr Harrison on 11 April 2008.  It was noted the reason for attendance was depression and insomnia.  Cipramil and Temaze were prescribed.

117  The plaintiff was first seen by Dr Jensen on 17 May 2004. 

118  Dr Jensen then noted the plaintiff had severe low back pain radiating down the posterior aspect of both thighs to as far as the knees and also into both the groin, the scrotum, and the anterior aspect of his thighs.  The plaintiff rated shooting, electric, stabbing, sharp, hot, burning, aching pulling pain as 8 to 9 out of 10 and he said it was getting worse in 2004.[77]

[77]T119

119  The plaintiff also advised that those problems severely limited his activities of daily living and he could not do his normal work as a landscape gardener.  Outdoor pursuits and caring for his child were severely limited.  Sitting tolerance and walking tolerance was very limited and he described on a questionnaire a moderately high level of perceived disability and significant psychological distress.  He had chiropractic treatment for the last six months with only mild to moderate relief.[78] He had attended numerous physiotherapists and the picture that Dr Jensen was conveying was that the plaintiff was in a lot of very significant pain and disability despite treatment.  Dr Jensen agreed he had obtained a history of a work-related back accident of 1998.

[78]T120

120  The plaintiff had undergone retraining as a youth worker and was working at a special needs high school full time four days a week.  He still tried to go surfing as much as possible but that left him a bit sore.

121  Dr Jensen confirmed there was no neurological compromise on the imaging he had at that stage[79] and a discography showed normal lumbar discs, none of which reproduced concordant pain.[80]

[79]T120

[80]T121

122  Dr Jensen confirmed investigations were undertaken in relation to the facet joints with an injection into the nerves supplying those joints.  That resulted in no short-term improvement in the plaintiff’s pain and Dr Jensen concluded those joints were not significant pain generators.

123  Dr Jensen confirmed at that stage, he thought the plaintiff was totally incapacitated for pre-injury duties of heavy manual work and that that would continue indefinitely.  He thought the plaintiff would have struggled with heavy lifting components of bar work.[81]  He confirmed he believed it then highly unlikely the plaintiff’s level of disability would change to any significant degree in the long term.[82]  He considered the prognosis guarded in the absence of further treatment.

[81]T121

[82]T121

124  The plaintiff was given injections on 21 and 30 June 2004.  On 26 July 2004, his lower back pain was slightly worse and he rated it at 8 out of 10. 

125  As he thought the plaintiff’s condition was musculoligamentous in nature, Dr Jensen then undertook prolotherapy by way of further injections on 2 and 20 August and 3 and 22 September 2004.[83]

[83]T122

126  On 22 September 2004, the plaintiff rated his pain at 7 out of 10.  On 6 October 2004, he rated it at 6 out of 10 and had the last prolotherapy injection.[84] The standard protocol at that time was for a course of six injections.[85]

[84]T125

[85]T126

127  The plaintiff rated his pain at 4 out of 10 on 25 November 2004 when it was noted he had recently been jogging and pulled up ok. 

128  As at the end of 2004, Dr Jensen thought the plaintiff’s back was a good deal better and he was suggesting an exercise program, and the plaintiff advised he was intending with his payout to start a small business working in Geelong.[86]  At that stage, the pain assessment was at its best ever, 4 out of 10, having previously been 7 or 8 out of 10.  Pain was also rated at 4 out of 10 on 17 March 2005. 

[86]T123

129  The plaintiff next saw Dr Jensen on 31 March 2005, when it was noted pain recurred in the last few months, especially after moving house.  Before that was surfing, some golf, and the plaintiff was walking.  There was no referred leg pain.  The pain was described as 7 out of 10.

130  On review on 26 April 2005, the plaintiff had much less pain, rating it at 4 out of 10.  Also on that day, he noted the injection had helped.  On 19 July 2005, the plaintiff rated his back pain as 5 out of 10.  Dr Jensen noted the plaintiff had just done up his new bar and there was lots of manual work so increased low back pain.  It was noted that the plaintiff had had a massage last week which helped after manual work.

131  On 26 September 2005, the plaintiff assessed his pain at 6 out of 10.  He advised the last injection did not help much.  He was working long hours and had lots of time on his feet.  There was lots of lifting of stock, so that was not helping.  There was no time for exercise apart from some walking and golf.

132  Pain was rated at 6 out of 10 on 21 November 2005.  Dr Jensen noted the plaintiff was good a few weeks after the last injection, but then shifted house, and there was lots of bending and lifting.  He was coping with work, but still had to pack stock, which aggravated back pain.

133  On 27 February 2006, the last attendance with Dr Jensen before the transport accident, the plaintiff rated his pain at 5 out of 10.  He was noted to be coping, not exercising much. There was no medication except occasional paracetamol, and slept okay.

134  Dr Jensen confirmed that the plaintiff seemed to have responded to the injection.  There was significant improvement with pain down to 5.  Activity levels seem to improve moderately as well.  The plaintiff still had pain but he was compromised a little bit, but he was functioning at a better level.[87]

[87]T127

135  At that stage, Dr Jensen was not getting the impression that there was quite a level of subjective and psychological factors impacting on the plaintiff’s motivation and activity levels and experience of pain.

136  In his December 2009 report, Dr Jensen noted he had initially seen the plaintiff between 17 May 2004 and 27 February 2006 because of a previous work-related back injury.  As a result of that, he had pre-existing chronic low back and mid thoracic pain.

137  Mr Carey wrote to Dr Threlfall in July 2001.  He confirmed the discograms of 1999 were normal.  He advised Dr Threlfall he would arrange facet injections and take matters further in regard to radiofrequency denervation.

138  Mr Carey, in his report of April 2014, following examination the previous month, noted he had seen the plaintiff in 2001 in relation to a work injury many years beforehand.  The plaintiff had lumbar discograms which were reported by him as quite normal.  He later retrained, and initially worked as a youth worker, and then had his own business running a tapas bar in Geelong, which he sold in 2008.

139  A Centrelink work capacity-participation assessment report was prepared on 8 July 2003.  It was noted the plaintiff had very severe symptoms which led to substantial difficulties with most daily tasks and that assistance with elements of self-care may be required. 

140  The plaintiff had a minimal work capacity.  He was then studying a BA in social science, majoring in youth work.  He was working 24 hours per week as a youth counsellor.  He was physically unable to work more than 24 hours per week due to his poor sitting and standing tolerance and chronic pain.  It was noted the plaintiff had been optimally treated and he would not improve within the next two years.

141  On examination by Mr Southby on August 2002, the plaintiff complained of pain in his lower back, pain down the back of his legs and a jittery feeling in his legs.

142  Mr Southby concluded the plaintiff had suffered minor disc damage in his lower lumbar spine.  He thought the plaintiff was permanently incapacitated for work involving repeated twisting of the trunk, repeated bending, repeated heavy lifting or repeated jolting of the spinal column.  He thought he was, however, fit for work which did not involve these specific activities.  He was also incapacitated for various sporting activities which he used to enjoy.  He thought the prognosis was fair.

143  The plaintiff was examined by for medico-legal purposes by a number of doctors in 2000 in relation to the 1998 injury.  As these examinations pre-date the relevant transport accident by eight years, they are of little assistance. 

144  Although they were tendered, there was only a brief reference to Mr Hooper’s examination, when he noted the overall prognosis was excellent although, because of his back, the plaintiff would be advised not to partake in work that aggravates his condition.  In his view, the plaintiff was capable of doing all but the heaviest work.[88]

[88]T167

Post transport accident investigations

145  There was an MRI scan of the thoracolumbar spine in March 2009.  It was reported that there was advanced multi-level thoracic and lower lumbar intervertebral disc and facet joint degenerative change with indentation of the cord at multi-levels in the mid thoracic, and canal stenosis at the L3-4 and L4‑5 levels.  Nerve root impingement at the left L3-4 and the right L5 nerves as described.

146  There was an MRI scan of the whole spine in October 2009.  In the mid thoracic region there were small disc protrusions at several levels, including T6-7, T7-8 and T8-9 with indentation of the thecal sac but no significant cord compression or cord signal abnormality and no convincing nerve root compromise.

147  There were moderately advanced disc degenerative changes in the lumbar spine from L3 to S1 with moderate central canal narrowing at L3-4, which bordered on canal stenosis.  There was also moderate exit foraminal narrowing at L4-5 on the left and mild to moderate exit foraminal narrowing at L3-4 on the left without definite neural compromise.  Prominent end plate changes were present at L3-4 and L4-5, including some oedematous component, which may be associated with pain.  There was no abnormal epidural tissue, paravertebral oedema or other findings to particularly suggest infected discitis.

148  There was a further MRI scan of the whole spine in October 2012.  It was reported that there was no evidence of discitis, osteomyelitis, epidural abscess or paraspinal collection.  There was severe lumbar spine degenerative change, worse than on previous imaging from 2009 at L3-4.  There was a broad-based disc bulge, facet joint degenerative changes and mild blunting of ligamentum flavum resulting in moderate central canal stenosis.  The nerve roots above that level were kinked, consistent with this being a significant stenosis. 

149  At L4-5, the focal central disc protrusion contacted the traversing bilateral L5 nerve root and slightly posteriorly displaced them.  There was moderate to severe neural exit foraminal narrowing of L3-4, L4-5 and L5-S1 bilaterally.  The worst affected level being the left L4-5 neural exit foramen, where there was no cuff or fat around the exiting nerve root.

150  An MRI scan of the whole spine on 22 October 2012 revealed marked oedema and enhancement within the L4 and L5 vertebral bodies, as well as the L4-5 intervertebral disc with findings typical of discitis and osteomyelitis.  Signal abnormality and enhancement extended through the right posterior elements of L5 to reach the L5-S1 facet joint and further extended to the erector spinae musculature. 

151  There was an MRI scan of the lumbar spine of 7 February 2013.  It was noted that the inflammatory changes related to the L4-5 discitis osteomyelitis had significantly improved when compared to the prior examination, with only minor vertebral body oedema remaining.  Minor enhancement was noted related to the right L5-S1 facet joint.  Disc pathology was noted at L3-4, L4-5 and L5-S1 levels without evidence of high-grade neural compression with relatively stable appearances compared to the prior examination.

152  There was a CT scan of the lumbar spine in October 2013.

153  There was an MRI scan of the cervical and thoracic spine of May 2014.  It was noted that mid thoracic disc protrusion, resulting in contact of the cord at T6-7, left T7 nerve root and T8 nerve root.

Post transport accident treatment

154  The first attendance with Dr Harrison following the transport accident was on 26 November 2008.  The reason for contact was depression.  It was noted the plaintiff had poor sleep, depressed mood and panic attacks.  Cipramil was ceased.

155  On 12 February 2009, the plaintiff attended with bilateral back pain with referred leg pain and depression.  Opioid use was discussed and Effexor was prescribed and a Norspan patch commenced. 

156  On 6 March 2009, the plaintiff attended for narcotic analgesic prescription.  It was noted the plaintiff was to see an orthopaedic surgeon on 13 March 2009 and was awaiting the results of an MRI scan.  The plaintiff attended on 18 March 2009 for depression and chronic pain.  There was a note of a pain management referral and Paroxetine was prescribed.

157  There was a lengthy note of an attendance on 23 March 2009 when the plaintiff presented with a four-page list of his problems.  There was a discussion about opioid use and lifestyle issues.

158  Dr Harrison was advised by Dr McKeegan on 27 April 2009 that he was taking over the plaintiff’s care. 

159  The plaintiff had physiotherapy at Corio Health Group from 12 August 2009. 

160  It was noted that the plaintiff continued to have trouble with his back following his initial 1998 injury, despite many different forms of therapy, and he was referred to Mr Roy Carey, who advised against surgery.

161  Dr McKeegan, at Waurn Ponds Family Clinic, saw the plaintiff on 17 July 2008. 

162  At the time of this examination, the plaintiff told Dr McKeegan that he had had long standing back pain relating to a lumbar disc injury in 1998, and he felt his back pain had increased since the transport accident. 

163  Simple analgesia was prescribed and the plaintiff was asked to return for review if he had not improved in a week. 

164  The plaintiff saw other practitioners at the Clinic for unrelated matters in August 2008 and February 2009.  On 24 February 2009, Dr Ward noted the plaintiff was using narcotic patches for back pain.  Dr McKeegan noted on 8 April 2009, he had received letters from Dr Jensen regrading chronic back pain, noting the plaintiff had been seeing Dr Harrison and wanted to come to the clinic. 

165  The plaintiff saw Dr McKeegan for depression on 24 April 2009 and was prescribed Prozac.  On 27 April 2009, Dr McKeegan noted anxiety secondary to back pain and Cipramil was prescribed.  On 8 and 20 May and 10 June 2009, pain management was discussed for chronic back pain

166  Dr McKeegan reported in November 2009 that he was unaware of any ongoing symptoms or problems from the transport accident until approximately June 2009 when the plaintiff stated during a consultation that he wanted to lodge a TAC claim because looking back, he felt his chronic back pain had become worse since the transport accident.  Involvement of the TAC was first noted on 24 June 2009.

167  Dr McKeegan reported that the plaintiff told him he had a work-related back injury in 1998 where there was a significant injury to his L5-S1 lumbar disc.  He had had problems with his back ever since.  In a certificate of 24 June 2009, Dr McKeegan noted pre-existing chronic back pain dating back to a lumbar disc injury in 1998.

168  Dr McKeegan prescribed OxyCodone, Morphine, Gabapentin and Diazepam at various times to help manage the plaintiff’s pain.

169  Dr McKeegan did not see the plaintiff at all between September 2010 and August 2012.  He noted during that time the plaintiff attended pain management in Geelong.  When he saw the plaintiff in August 2012, his back pain had improved to the point he no longer regularly required narcotic analgesic.

170  Dr McKeegan noted the diagnosis of osteomyelitis in October 2012 and admission to Geelong Hospital.  He thought this condition was unrelated to the transport accident. 

171  On examination in April 2013, the plaintiff’s back pain was back to being well controlled on paracetamol only.

172  The plaintiff attended complaining of a flare up in October 2013.  On examination, he had a full range of movement and neurological examination and straight leg raising were normal.  An MRI scan organised at that time did not show any new pathology.  A trial of prednisolone was started which did not improve the plaintiff’s left leg pain and he was referred to Mr Carey.

173  Dr McKeegan thought that the plaintiff’s longstanding complete incapacity dating back to his original work accident and his ongoing recurrent back pain made it unlikely that he would improve to the point of being meaningfully employed in the future.

174  In his most recent report of April 2014, Dr McKeegan diagnosed chronic back pain, previous lumbar disc injury, multi-level degenerative disc changes, previous discitis and depression.

175  Having not seen the plaintiff since February 2006, the plaintiff went back to Dr Jensen with no apparent referral on 1 December 2008.  It was Dr Jensen’s impression that the plaintiff just came back of his own volition.[89]

[89]T128

176  Dr Jensen noted the plaintiff had sold the bar in 2008.  He tried to get a job with Karingal Disability but was denied because of back problems.  The plaintiff had one year of struggling with low back pain since he sold the bar.  He was then managing with “booze, drugs, etc”.  It was noted the plaintiff was trying to get off illicit drugs at present.  He was getting short-term relief with chiropractic and massage treatment.  He was not playing golf or surfing, and was struggling with chores, and had to pace housework.  He was now a househusband.

177  Effexor and Panadeine Forte were added, and it was suggested the plaintiff could try opioid patches.  He would see if he could get through without them, as it would be better for him to be off illicit drugs, and Dr Jensen urged him to make an appointment with a psychiatrist.

178  There was a further attendance on 16 December 2008 when “no referral” was noted.  The plaintiff already benefited from the injection and Effexor was helping his pain and mood.  He was having gastro problems with Panadeine Forte and also getting a sore neck.

179  On examination on 12 January 2009, a third prolotherapy injection was given.  On 9 February 2009, Dr Jensen noted no change with prolotherapy and the plaintiff said his pain had been the same ever since injury.  Nothing much helped.  It was noted there would be a repeat MRI scan, and patches may help.  Dr Jensen then thought the plaintiff might go down the road of patches as a better way to control his pain, rather than him being tempted to do it.[90]

[90]T130

180  On 13 March 2009, the plaintiff complained of low back pain which was much worse.  The results of the MRI scans were noted.  It was noted that patches were worth continuing.  Dr Jensen mentioned relationship problems because of pain, and maybe a psychologist referral, “? pain clinic”.

181  On 20 March 2009, Dr Jensen noted the plaintiff was going for bankruptcy, and needed a letter of support regarding being unable to work, and would also be going for a Carer’s allowance for his wife.  Effexor was ceased.

182  Dr Jensen confirmed that the plaintiff was reporting pain at 8 out of 10 in March 2009.  There did not appear to be clinical signs of neurological problems and Dr Jensen’s impression at the time was that it was an ongoing problem related to the lower back and thoracic spine that had been going on since the work accident.[91]

[91]T130

183  This was Dr Jensen’s impression until the telephone call of March 2009.  The plaintiff wondered whether a motor vehicle accident last year may have stirred up his pain, especially the thoracic pain.  Dr Jensen confirmed that he noted in theory that it was possible but advised the plaintiff he would have difficulty proving that after this length of time, and the legal minefield that it would open up would cause more undue psychological distress, so he did not think the plaintiff should take that road.[92]

[92]T131

184  On that date, the plaintiff told him that Dr Harrison had abused him. 

185  Dr Jensen confirmed that going down the medico‑legal scenario increases people’s psychological distress which in turn almost invariably worsens the prognosis.  He was suggesting to the plaintiff maybe that was not a good way to go.[93]

[93]T131

186  Dr Jensen agreed that he considered the plaintiff needed some sort of pain management program after March 2009.  The plaintiff was not coping, so he needed to learn strategies.  After the March examination, there were no plans to see the plaintiff again.  There was the recommendation that he go to pain management.[94]

[94]T134

187  The next attendance was at the request of Slater & Gordon on 2 December 2009.

188  In his extensive notes of that date, Dr Jensen recorded that the plaintiff had complained of spasms in his leg since the transport accident.  Pre-accident, his pain was more of a dull ache, like a muscular pain.  Low back pain was a more severe grabbing pain.

189  Dr Jensen noted the plaintiff told him he got used to dealing with that sort of pain, with stretching, meditation, and was back playing golf and working at the time of the transport accident, although he had sold the bar in March 2008.  At the time of the transport accident, he was a househusband, and still was.

190  The plaintiff reported pain in the thoracic and lower back area.  Dr Jensen noted the pain levels had increased somewhat since a questionnaire in June 2004 when the plaintiff was rating pain only 5 to 6 out of 10 and his pain distribution, pain descriptor and degrees of psychosocial distress and physical disability were not as high.  The plaintiff rated his pain on re-examination in December 2009 as on average 8 out of 10.

191  Dr Jensen concluded that as a result of the transport accident, the plaintiff suffered a significant exacerbation of his pre-existing lumbar spine and more particularly thoracic spine problems.  In relation to those areas, these seem to have developed more of a neuropathic component to them since the transport accident based on the descriptors of the type of pain the plaintiff now suffered.  The “dancing legs” he described would also be consistent with a neuropathic pain syndrome.  That was not a history Dr Jensen had received earlier.[95]

[95]T135

192  Dr Jensen noted it would seem that the plaintiff had also developed injuries to his left wrist where there was a ganglion, and possibly his right, and there were also right knee problems.

193  Dr Jensen confirmed the treatment post-2008 was different and now involved patches.[96]  Previously, he had not been prescribing medication independent of injections but he gave prolotherapy a try the second time.  However, it was not very successful that time.

[96]T132

194  Dr Jensen agreed that the plaintiff had had a degree of neuropathic pain the whole time but, after 2009, it was more profound and he was using descriptors.  If he could recall, the plaintiff said there was a sharp sore thing in his back and certainly the dancing or jittery legs was a neuropathic phenomenon.  Whilst the descriptors were similar, they were more profound after the transport accident.[97]

[97]T136

195  Also, whilst there was a similarity between the plaintiff’s pain in 2004 and 2009, after the transport accident, the pain was a little higher in the thoracic spine.  Dr Jensen was not surprised if psychosocial issues could have contributed to the plaintiff’s subjective experience of pain at that time.[98]

[98]T138

196  Dr Jensen explained that neuropathic pain can vary from time-to-time and the causes are multifactorial.  He disagreed that it was always difficult to find objective evidence of pain.  The pain is subjective but objectively you can sometimes find undue tenderness and there were findings on examination that hint towards neuropathic pain syndrome.[99]

[99]T140

197  The basis of Dr Jensen’s view that there was a significant exacerbation of lumbar spine was that not only having seen the plaintiff but, also, he had a lumbar MRI scan back in 1998, which Dr Jensen thought had fairly innocuous changes and the MRI scan of early March 2009 did show more significant lumbar spine pathology and also thoracic spine pathology. 

198  Dr Jensen had no history of any other event that might have led to those sorts of changes.  One could speculate that with the passage of time, those changes could occur, but short of any other trauma, if the only other trauma was the transport accident, then it was possible that it contributed to the MRI changes, which contributed to the plaintiff’s worsening pain and disability, notwithstanding psychosocial factors could also have contributed to his degree of disability.[100]  He confirmed that the transport accident might have had an effect in terms of increased symptoms.[101]

[100]T141

[101]T141

199  Dr Jensen noted the plaintiff had a long history of previous injuries with thoracolumbar back pain, detailing the treatment received.  Given the duration of the plaintiff’s existing back problems and now the exacerbation, Dr Jensen felt it highly likely that he would suffer chronic thoracic and lumbar spine problems indefinitely.  He noted these combined neuropathic and nociceptive pain syndromes with a significant psychosocial overlay almost invariably carry a poor prognosis.

200  Dr Jensen then thought the plaintiff’s current capacity for work was very limited.  He noted the plaintiff was then just managing as a househusband with some pacing strategies.  He also noted the plaintiff had some youth-worker skills and could perhaps be able to do that sort of work in the longer term, but there would have to be restrictions on physical activity – refraining from any recurrent or prolonged bending, twisting or stooping activity, refraining from heavy lifting, minimisation of any prolonged static postures and an ability to move around the workplace freely.  He thought it highly unlikely the plaintiff’s capacity for work would change in the long term. 

201  Dr Jensen confirmed that he did not get much in the way of any psychosocial overlay when he saw the plaintiff, and that was something he always looked for.[102]

[102]T143

202  The plaintiff was seen by Mr Carey on referral from Dr McKeegan in March 2014. 

203  Having examined the plaintiff and seen the recent MRI scan of his lumbar spine which showed gross degenerative change from L3-4 disc to some anterior L4-5 changes, possibly consistent with some old discitis, Mr Carey was uncertain as to the cause of the plaintiff’s diffuse pain.  He suggested he continue pain management.

204  Mr Carey noted he had seen the plaintiff in the distant past, in 1998, twice in 1999 and twice in 2001.  He noted most of his records from fifteen years ago had been destroyed.

205  Mr Carey diagnosed diffuse spinal pain with no obvious specific pathology evident.  This was based on the history of diffuse spinal pain, the diffuse pain, tenderness and stiffness, and the absence of any specific neurological or other disorder evident on the limited investigations.

206  Mr Carey could find no physical reason why the plaintiff would not have some work capacity, but this would be best determined more precisely by an expert occupational physician.

207  Having seen the MRI of 8 May 2014, that did not cause Mr Carey to alter his answers to the questions or his opinion.  He confirmed none of the multiple levels of degenerative change were concordant with the history or clinical examination findings.  He remained uncertain as to the cause of the plaintiff’s diffuse pain.

The Plaintiff’s medico-legal evidence

208  Having examined the plaintiff in late December 2009, Associate Professor Richard Stark, neurologist, concluded overall, that the plaintiff had suffered an aggravation of pre-existing spondylosis affecting, particularly, the thoracic and lumbar spines.

209  The plaintiff had told him that his symptoms from the 1998 incident were manageable with considerable improvement.

210  Professor Stark thought there was some progression and quite substantial changes shown in the 2009 MRI beyond minor changes shown in 1998, noting the discogram with less dramatic changes in 2001.

211  Professor Stark considered the plaintiff’s injuries resulted in significant limitations in day-to-day life.

212  Following examination in December 2012, Mr Fogarty, orthopaedic surgeon, thought the organic (physical) injury to the plaintiff’s spine sustained in the transport accident was a soft tissue injury aggravating pre-existing degenerative disc disease in both the mid and lower thoracic and lumbosacral regions of the spine. 

213  In Mr Fogarty’s view, differences in pre and post-transport accident radiological investigation were that although there was early degenerative disc disease in the lumbar and thoracic regions of the spine, there were more marked changes of advanced disc degeneration at L3-4 and L4-5 with broad-based posterior disc bulge and in the thoracic spine a small central disc protrusion at T6-7 and T7-8.

214  The plaintiff had told him of the 1998 injury.  He described it as being manageable after a time but he “never really lost it”.  He was having massages every two to three months as a form of physiotherapy.  He was very active in his work as a youth worker.

215  Whilst Mr Fogarty noted the role of osteomyelitis in the plaintiff’s spinal condition on later examinations, he considered there was no likelihood of the plaintiff undertaking any manual work and that the injury had had a significant impact on the plaintiff’s life and work

216  Noting Mr Southby’s description of the 1998 investigations being normal, in June 2013, Dr Capes, industrial physician, diagnosed an aggravation in the transport accident, the extent of which was not possible to measure as there were no further investigations until after the transport accident.

217  Dr Capes considered the plaintiff’s back problems prior to the transport accident were minimal, as his sporting and social calendar was largely unaffected.

218  Following the transport accident, the plaintiff had significant spinal damage now at two levels.  Dr Capes thought it was impossible to say whether there was incremental damage over the years; however, he considered the transport accident aggravated and possibly accelerated a largely asymptomatic spinal disease.

219  Mr Kierce, orthopaedic surgeon, in December 2013, noted that discograms in May 2000 showed some disc degeneration of the L5-S1 disc but L3-4 and L4‑5 looked normal.  However, by the time of the October 2009 MRI scan, there was a very different picture, with bulging of the L3-4, L4-5 and L5-S1 discs which was likely to indicate some significant deterioration in the lumbar spine occurred between 2000 and the end of 2009. 

220  Mr Kierce stated with a reasonable degree of medical certainty that it was likely the plaintiff aggravated any pre-existing degenerative change and may have suffered further degenerative change because of the transport accident.

221  Dr David Weissman, psychiatrist, re-examined the plaintiff in October 2013.  He then thought the plaintiff was suffering from only mild PTSD symptoms and traumatisation features, and he was suffering from a mild to moderate, but closer to mild, chronic Adjustment Disorder with Depressed and Anxious Mood. 

The Defendant’s medico-legal evidence

222  Mr John O’Brien, orthopaedic surgeon, in November 2009, thought, from the material available, it was difficult to precisely define whether there had been any major clinical change as a result of the transport accident.  He appreciated that there was significant degenerative change defined on the MRI in the lumbar and thoracic spine, but in his view, the current clinical signs certainly did not confirm major organic spinal pathology.

223  Mr O’Brien diagnosed a CPS.  He thought, on his current presentation, the plaintiff would be unemployable, noting however, he was in receipt of a Disability Support Pension prior to the transport accident. 

224  Dr Kostos, rheumatologist, in September 2012, accepted that the plaintiff may have injured his thoracic and lumbar spine in the transport accident, but he thought the only possible diagnosis that could be made was of a CPS.

225  Dr Kostos thought the plaintiff’s overall presentation was one of widespread pain and therefore it would be impossible to suggest that he had a localised cause for his problems.  However, in view of the fact that the plaintiff had pre-existing problems, he could only attribute that on a 50/50 basis on purely arbitrary grounds.

226  Dr Kostos considered that condition had impacted on the plaintiff’s work and daily activities.

227  Professor Stephen Davis, consultant neurologist, in November 2012, making an allowance under the AMA Guides for thoracic and lumbar spines, could find no features of a neuropathic pain syndrome diagnosing a CPS involving the vertebral column and probably relevant psychological aspects.

228  Based on the history, Professor Davis thought the plaintiff would have been DRE 1 or 0 per cent prior to the transport accident, noting the history that the plaintiff had substantially improved with the occasional Panadol for back pain and he might have had some leg pain.

229  Having been released from hospital following osteomyelitis, Professor Davis thought the plaintiff was fairly good psychologically.  The prognosis was reasonable but he was unable to do heavy work.

230  Mr Huffam, orthopaedic surgeon, in December 2012, noted the plaintiff had a long and complicated history of disability relating to his spinal injury and the more recent history of osteomyelitis of the lumbar spine.  He thought it was difficult to assess as to how much of the plaintiff’s disability impairment related to the transport accident, although he suspected much of it predated it.

231  Mr Huffam diagnosed aggravation of pre-existing disc degeneration of the thoracic and lumbar spines, noting the quite gross degenerative changes would be much longer standing than dating from the transport accident.

232  Dr Elder, specialist occupational physician, in September 2013, thought the plaintiff may have suffered a relatively short soft tissue injury but he could not find clinical evidence of any ongoing significant pathology. 

233  Dr Elder noted the plaintiff had made a very good recover from osteomyelitis.  He did not think there was any disability and considered the plaintiff could do his pre-injury work

234  Dr Elder thought the plaintiff could run a café and there did not seem to be any significant disability with respect to his activities of daily living, domestic activities and leisure activities.  He noted the plaintiff was very active, continuing to fish off the bridge at Barwon Heads Bridge and going out in his boat with his father once a week. 

235  The plaintiff also told Dr Elder he was walking for exercise for 20 minutes a day.  He was able to drive his car.  He could undertake mowing the lawns and doing the garden.  He described his usual daily routine was doing the housework, cooking, doing the shopping and being involved in the garden and looking after the family pets.  He was a Geelong supporter and was taking his wife and children to the football that Friday night in Melbourne.

236  In September 2012, Dr Daniels, psychiatrist, diagnosed a resolving Pain Disorder associated with a general medical condition and psychological factors and an Adjustment Disorder with Anxiety and Depressed Mood which had resolved. 

237  Dr Timothy Entwisle, psychiatrist, saw the plaintiff in October 2014.  The plaintiff confirmed his involvement in the type of activities described to Dr Elder and that he and his wife went out to dinner occasionally, although she wanted him to increase his social activities. 

238  The plaintiff enjoyed pottering around the vegetable garden.  He had a pretty good relationship with his parents and family who lived locally.

239  Dr Entwisle diagnosed a Pain Syndrome, Adjustment Disorder with Depressed and Anxious Mood in remission, alcohol abuse, substance dependency, and childhood sexual and physical abuse.

240  Dr Entwisle noted the plaintiff’s physical injuries were minor and he had a pre-existing history of back pain for which he was placed on a pension.  He did not seek active treatment until 2009, by which time there were issues in regard to his chronic amphetamine abuse, erratic behaviour, financial issues, the breakdown of his marriage and further matters involving Dr Harrison’s refusal to provide him with further pain relief, subsequent to which he deliberately drove down the road in an attempt to self-harm. 

241  Dr Entwisle thought the plaintiff did not present with a psychiatric condition currently, which would impact upon his work or daily activity.

Financial details

242  In the 2005-2006 financial year, the partnership return for the business set out a loss of $35,558 and salary and wage expenses of $23,397. 

243  In the 2006-2007 financial year, the plaintiff received Disability Support Pension payments of $11,116. 

244  The plaintiff’s TAC claim was completed on 24 June 2009.  He listed injuries as anxiety, depression and injury to the thoracic spine.  He described his duties as home duties, own business, disability pensioner.  He noted taking painkillers for his lower spine – Panadol, Panadex and anti-inflammatories.

Overview

245  Counsel for the plaintiff submitted the relevant body function is the spine and all aspects are implicated. There was also an application pursuant to subsection (c) for a Pain Syndrome or Adjustment Disorder.[103]

[103]T1

246  There is no dispute that the plaintiff suffered a soft tissue injury to his spine involving an aggravation of pre-existing degenerative changes at the lumbar and thoracic levels.[104]

[104]T1

247  Although the Claim for Compensation was submitted quite late, almost at the end of the twelve-month period, liability was accepted and statutory benefits have been paid.

248  The issue in dispute is whether any aggravation of the plaintiff’s spinal condition in the transport accident is “serious” in terms of a Petkovski v Galletti[105] analysis.

[105][1994] 1 VR 436

249  Counsel for the defendant submitted it was a “classic aggravation question of disentanglement and there may also be some credit issues.”[106]

[106]T7

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

251  In Petkovski v Galletti,[107] 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.  … .”

[107]Supra

252  Counsel for the defendant submitted that any aggravation was not “serious” and, in any event, there had been a significant improvement in recent times, following the plaintiff’s recovery from osteomyelitis, so his condition at present could not be described as “serious”.[108]

[108]T153

Credit

253  As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[109]

“… 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.”

[109](2010) 31 VR 1 at paragraph [12]

254  Counsel for the defendant suggested the plaintiff attributed his condition to the transport accident as “a sort of retrospective looking for a causal contribution rather than linking it contemporaneously”.  It was submitted that it was odd, having mentioned the transport accident to Dr McKeegan on 17 July 2008, the plaintiff did not mention it again until eight months later when he saw Dr Jensen if the transport accident had affected him as he now claimed.[110]

[110]T155

255  Counsel for the plaintiff submitted that the plaintiff was candid and forthright and answered questions with no hesitation or equivocation. In fact, he volunteered material that was, on one view, not of help to his cause, and he made admissions against interest. Counsel gave one example of the plaintiff being “almost joyous” after his recent recovery from osteomyelitis.[111]

[111]T173

256  It was submitted that looking at the totality of his evidence, the plaintiff came as a “complete package” and, as such, he is a truthful witness to the symptoms from which he is still suffering.[112]

[112]T173

257  Further, the evidence of the plaintiff’s wife, Sheridan, is supportive, particularly in the context of a severed relationship.  She confirmed the plaintiff’s situation, and her evidence was not challenged.[113]

[113]T174

258  There was also no suggestion by any doctor of any deliberate exaggeration or embellishment of symptoms on examination.

259  Overall, I found the plaintiff to be a generally credible witness, prepared to acknowledge recent improvement in both his physical and psychological state.  However, I tend to agree with the submission by counsel for the defendant that the plaintiff first focussed on the transport accident as a cause of any ongoing problems some eight or nine months after it happened, a time much later than would be expected had he suffered the increase in symptoms he has later described. 

260  Dr McKeegan and Dr Jensen noted the difficulties the plaintiff may have complaining at such a late stage that the transport accident was responsible for his symptoms. 

261  Although he told Dr McKeegan on 17 July 2008 that he injured his back in the transport accident, the plaintiff did not return for further treatment in this regard as had Dr McKeegan offered.  He saw other practitioners for unrelated matters and next mentioned a back problem at that surgery and to Dr Harrison in February 2009. 

262  No mention was made by the plaintiff of the transport accident in subsequent attendances on doctors until March 2009, when he saw Dr Jensen.  In those circumstances, I do not accept that the transport accident led to a significant worsening of the plaintiff’s condition.

263  Whilst the plaintiff has conceded his back never recovered from the 1998 injury, the extent of that recovery is in issue.

264  Although he had not seen Dr Threlfall or Dr Jensen in the two years before the transport accident, the plaintiff reported an exacerbation of back pain to Dr McKeegan in early 2008, before he sold the business, whilst doing up his house.  He then described a “twitching” in his legs, and medication was prescribed. 

265  The plaintiff agreed, because of severe back pain and lack of interest, he did not participate in home renovations in early 2008 as Dr McKeegan noted.  This entry was consistent with Dr Jensen’s note in December 2008 that the plaintiff had been struggling with back pain for the last twelve months.

266  Further, the plaintiff was also having issues with depression and was prescribed Cipramil by Dr Harrison in April 2008.  Dr McKeegan also prescribed Endone after the plaintiff injured his rib falling from a workbench at home in late April 2008.

267  At the time of the transport accident, the plaintiff had recently sold the business. He was having problems with depression and had family and financial issues.[114]

[114]T159

268  The nature of pain complained of by the plaintiff pre and post-accident is quite similar,[115] although Dr Jensen described the neuropathic quality of the pain as more profound after the transport accident, when he last saw the plaintiff in December 2009. 

[115]Mr Southby in 2002 - a “jittery feeling in his legs”; Dr McKeegan in February 2008 - legs “twitch”

269  Pain of a neuropathic quality has not been found by any examiner since 2009.  Professor Davis, in late 2012, noted there was no evidence of a neuropathic Pain Syndrome.

270  The consensus of medical opinion is that there was a change in the radiology between the 1998-1999 investigations that were relatively normal and MRI scans following the transport accident that showed significant degenerative change.

271  However, there are a range of views as to the significance of these findings and their relevance to the accident and to plaintiff’s present condition. 

272  A number of practitioners simply linked the degenerative changes to the transport accident:  Professor Stark, Mr Fogarty and, to a lesser extent, Dr Capes and Mr Kierce. 

273  Dr Jensen explained it was possible, in the absence of other trauma, that the transport accident contributed to the changes which contributed to the plaintiff’s worsening pain and disability.  Dr Huffam suspected most of the changes pre-dated the transport accident.

274  Significantly, treating orthopaedic surgeon, Mr Carey, when he examined the plaintiff earlier this year, considered the radiological findings were not concordant with the history or clinical examination findings and he remained unclear as to the cause of the plaintiff’s diffuse pain.

275  A similar theme runs through the medical opinion of Mr O’Brien, Dr Kostos and Dr Elder, relied upon by the defendant.  Whilst there were radiological changes, in their view, the current clinical signs certainly did not confirm major organic spinal pathology.  The overall presentation was one of widespread pain and therefore it would be impossible to suggest that the plaintiff had a localised cause for his problems.  In those circumstances, the only possible diagnosis was of a CPS – a view shared by Professor Davis in late 2012 and psychiatrists, Dr Daniels and Dr Entwisle. 

276  The consensus of recent medical opinion is that there is no major organic spinal pathology and the cause of the plaintiff’s spinal complaints is unclear.

277  In these circumstances, in my view, the plaintiff’s condition is more appropriately assessed under (c) as a CPS.

Treatment

278  Treatment since the transport accident and before has involved physiotherapy, prolotherapy injections, general practitioner attendances, neurosurgeon referral and pain management.  For a time post-accident, Norspan patches were added to the regime.  Medication has also been prescribed.

279  The plaintiff currently takes six Panadol Osteo and at times during the last six months, he has taken Endone.  He also was prescribed this medication shortly before the transport accident following a rib injury. 

280  The plaintiff’s need for painkilling medication has fluctuated at times, requiring only simple paracetamol, as Dr McKeegan has noted.

Work  

281  It is not disputed that the plaintiff had a light work back since the 1998 incident.  His spinal problems were described as chronic in a July 2003 Centrelink assessment when it was noted he was having substantial difficulties with daily tasks.  At that stage, the plaintiff could not do more than 24 hours per week as a youth worker.[116]  

[116]T156

282  Since the 1998 incident, the plaintiff has been in receipt of a Disability Support Pension which has been adjusted when he has been working in various jobs.[117]  He has not returned to full-time unrestricted work since 1988.

[117]T18

283  Initially, following the transport accident, the plaintiff tried to retrain, doing a course in natural resources management to enable him to work in a national park.[118]  However, halfway through that two-year course, he realised that he could not do the manual work involved and did not persist with the course.

[118]T21

284  The plaintiff then undertook further study, commencing a three-year Bachelor of Science degree to work as a youth worker.  He completed part of that course before taking a placement for a year at Berengarra Special School in 2004.  During that time, he had difficulty working more than 24 hours per week because of his back condition and reported problems in this regard to Dr Jensen.

285  In July 2005, the plaintiff commenced business at the bar.  His evidence as to his level of involvement is somewhat unclear.  He engaged tradesmen to set up the bar as he could not do heavy physical work and did not have any interest in doing it.

286  Although the plaintiff at times maintained he did not have to do a lot of physical work at the bar, at times when he did so he had difficulties with his back, as noted by Dr Jensen in July 2005 and September 2005

287  The plaintiff never worked full time in the bar and whilst the precise hours he worked are unclear, it seems he worked mainly about 20 hours per week.  His duties involved pouring drinks, organising functions and talking to patrons

288  Whilst he was running the bar, the plaintiff was still in receipt of a Disability Support Pension, receiving $11,000 in benefits in 2006-2007.

289  The plaintiff agreed that running the bar was stressful.  Whilst he maintained that had he not been injured in the transport accident, he had planned to start another bar in Geelong in early 2010, he agreed he sold the bar because he wanted to be a househusband and spend more time with his children.

290  Since selling the bar, the plaintiff’s only attempt at re-entering the workforce was undertaking a Certificate IV in Workplace Training Assessment for a short time, but it was too much for him and he struggled to be a student and had obligations at home.[119]

[119]T96 and T99

291  In terms of the future, the plaintiff would like to first try and be as good a father as he can, and at the moment that is his priority.[120]  He did not know how work was going end up.  He did not know if in the future he potentially would be able to do some part-time work, but it was not his priority.  He now needed to be safe and look after his children.  If he could get the right help in the future, he would try to return to work.[121]

[120]T99

[121]T105

292  Taking into account all the evidence, I am not satisfied that any employment consequences of the transport accident are “serious”, with the plaintiff’s work position being largely unaltered thereafter.

Domestic, social and sporting activities

293  The plaintiff is still able to engage in a range of social and domestic activities as he described to Dr Elder and Dr Entwisle.  He goes fishing and enjoys following Geelong in the AFL; he walks for exercise and is able to drive.

294  The plaintiff can mow the lawns and do the garden.  He described his usual daily routine was doing the housework, cooking, doing the shopping and being involved in the garden and looking after the family pets. 

295  The plaintiff was not a great tennis player or cricketer before the transport accident, enjoying social involvement in both sports.  He had stopped playing golf because of work commitments in the bar.

296  Whilst he has always been a keen surfer, the plaintiff’s ability to surf was reduced after the 1998 incident and in more recent times has been largely affected by his wrist problem, not subject of this application.

297  Although the plaintiff complains of ongoing problems with sleep due to back pain, he takes no medication in this regard.  He had problems sleeping prior to the transport accident, being prescribed Temaze by Dr Harrison for insomnia.

298  Taking into account all the evidence, I am not satisfied that the consequences of any aggravation of the plaintiff’s spinal condition resulting from the transport accident are “serious”.

299  Accordingly, the plaintiff’s application pursuant to ss(a) is dismissed.

Psychiatric impairment

300  Although favouring an organic explanation, counsel for the plaintiff submitted, in the alternative there was a credible case for psychiatric impairment relating to a CPS which was “severe” pursuant to ss(c).[122]

[122]T172

301  However, counsel for the plaintiff conceded that on the current material, the plaintiff’s psychiatric is improving somewhat.[123]

[123]T2

302  It was submitted by counsel for the defendant that any psychiatric condition was not “severe”, with improvement being acknowledged by the plaintiff and found by medical examiners.[124]

[124]T165

303  Very limited submissions were made in support of this application.

304  This application also involves issues of aggravation, with the plaintiff having been diagnosed with depression and being prescribed medication in that regard only two months before the transport accident.

305  There has been no real change to this treatment situation following the transport accident.  There has been no referral to a psychiatrist or any other treatment for depression.  On the plaintiff’s own evidence, his condition has improved in recent times, feeling “fantastic” after his recovery from osteomyelitis and being better able to get on with his life.

306  Mention was made by the plaintiff in his 2012 affidavit of two suicide attempts and suicidal thoughts and panic attacks due to the accident. There was limited medical evidence in this regard. The plaintiff complained of panic attacks to Dr Harrison in November 2008 at which time Dr Harrison noted no suicidal thoughts. There was no mention of the transport accident at that attendance.

307  The plaintiff complained to Dr McKeegan of being agitated in April 2009, before he told him about the transport accident. The following month, Dr McKeegan noted the plaintiff’s recent agitation and panic symptoms had settled.

308  For the reasons mentioned above, in my view the consequences of any CPS diagnosed post-accident are also not severe.

309  Therefore, I am not satisfied any aggravation of the plaintiff’s psychiatric condition resulting from the transport accident is severe.

310  Accordingly, the application pursuant to ss(c) is also dismissed.

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