Mitri v Transport Accident Commission
[2021] VCC 1604
•20 October 2021 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-02122
| JASON MITRI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne (via Zoom) | |
DATE OF HEARING: | 20 October 2021 | |
DATE OF JUDGMENT: | 20 October 2021 (ex tempore) | |
CASE MAY BE CITED AS: | Mitri v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1604 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Legislation Cited: Transport Accident Act 1986
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Demmler v Transport Accident Commission [2018] VSCA 284; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted o the plaintiff to commence a common law proceeding for injuries suffered in a motor vehicle accident which occurred on 14 January 2014.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Ms K Karadimas | Arnold Thomas & Becker |
| For the Defendant | Mr P A Czarnota | Wisewould Mahony |
HIS HONOUR:
1This is a serious injury application brought pursuant to s93 of the Transport Accident Act 1986. The plaintiff in this proceeding, Jason Mitri, is soon to turn 39 years of age. It is not in dispute that he was involved in a transport accident on 14 January 2014 when he was struck from behind whilst travelling in his work vehicle. It is not in dispute that as a consequence he developed symptoms in his neck.
2There is no argument that the accident occurred, and appropriately it was conceded by Mr Czarnota, counsel for the defendant, that the plaintiff has a persisting organic injury to the neck. It is that persisting organic injury to the neck that the plaintiff claims is a serious injury by way of a long-term impairment or loss of body function.
3This application proceeded in the usual way: that is, the plaintiff tendered two affidavits sworn by him and relevant medical reports. That tender included medico-legal reports commissioned at the request of the defendant. In addition, the defendant tendered two further medical reports.
4It is appropriate to record that the cross-examination was swift, efficient, and in my view appropriate, bearing in mind the narrow issue in dispute in this proceeding; namely, whether the plaintiff has and will continue to have symptoms which are “very considerable”.
5The injury is not really in dispute. For the purposes of this discussion, I propose shortly to look at some of the more recent medical opinion, but broadly it is described as a whiplash-type injury affecting the plaintiff’s neck.
6The balance of medical opinion is really to that effect: namely, there was some trauma involving the neck, which is still productive of this ongoing neck pain or whiplash type injury.
7As has frequently been said in applications of this type, in judging the seriousness of an injury, the credit of the plaintiff is highly relevant.[1] It is highly relevant because whether or not the Court accepts what the plaintiff has to say about the injury and impairment consequences is a highly relevant factor in the outcome, particularly in an application such as this, where the plaintiff is the only witness to give oral evidence.
[1]Johns v Oaktech Pty Ltd [2020] VSCA 10
8In this application, in my view, appropriately, there is no challenge to the plaintiff’s credit. Having seen him in the witness box, albeit with the limitation of a Zoom hearing, he struck me as a straightforward and honest man, and I am confident that I can rely on his evidence in the broad sense. He made appropriate concessions and at other times he stuck to his guns. But as I say, broadly, I am confident I can rely on his evidence.
9Pausing here, and in fairness to the submissions of the defendant, there are some injuries that are clearly serious and some that are clearly not. And of course I must take into account the broad range of injuries and impairment consequences, and not just those that come before the Court,[2] and I do so in my evaluation of the impairment and consequences to this particular plaintiff.
[2]TTB SMS Pty Ltd v Reading [2020] VSCA 203
10Dealing briefly then with the medical evidence, starting first with the plaintiff’s current treating general practitioner, Dr Mock. Dr Mock has provided a number of reports that are relevant to this discussion. In a report of 9 December 2019, he confirmed the diagnosis of whiplash injury and secondly a chronic pain syndrome, but, in light of the concession made by the defendant, I take that to be part of an organically-based chronic pain syndrome as indeed the doctor says, an organic basis for his condition is trauma sustained during the motor vehicle accident from the rapid unprepared acceleration/deceleration injury.
11Dr Mock, in that report, records a number of complaints his patient continues to make. I will not record them in this judgment. They are broadly consistent with what the plaintiff says in his affidavit material.
12Relevantly, in that report, Dr Mock proposed the possibility of a further pain-management program at Royal North Shore Hospital, a strengthening program or a trial of some form of injection described as superficial nerve hydro releases. Pausing there, none of that has occurred, seemingly in part, perhaps, due to some funding issue.
13Dr Mock, in that report, notes the plaintiff’s ongoing consequences. He states that the plaintiff is continuing to work pre-injury hours but with restrictions, and he felt that was likely to be permanent.
14More recently, in a report of 18 September 2021,[3] Dr Mock opined that the diagnosis remained unchanged and the plaintiff continued to suffer a whiplash injury involving the neck.
[3]Plaintiff’s Court Book (“PCB”) 114
15Briefly by way of a mix of treating and medico-legal opinion, Dr McCallum was involved in the plaintiff’s care very early on. He is a treating pain specialist. He was involved in the plaintiff having a series of injections into his neck, without any relief. There is no need to go into his material in detail, given it is so old. The last of his reports, a handwritten note, is in fact in February of 2015.
16More recently, Dr Winter,[4] a pain specialist engaged for medico-legal purposes, confirmed the whiplash injury, although perhaps in slightly different terms, where he referred to myofascial pain syndrome. But as he said,[5] “…This would fall under a chronic whiplash syndrome.” In any event, in that report, he thought the prognosis was guarded, and indeed, under the heading of “Prognosis”, he commented that the plaintiff was “likely to continue to experience pain and some functional limitation, however he has maintained full time employment since the time of injury.”
[4]PCB 109
[5]PCB 109
17He went on to note that he did not think there was any place for surgery, and there were a few medical options that could be tried in the form of pain medication, but otherwise, apart from the possible superficial nerve injections, he does not suggest anything by way of treatment.
18He says, in that report, that the plaintiff is on light duties and he supported ongoing management from a light duty perspective. He otherwise made some comments about restrictions that should be adhered to at work.
19Next, Mr Ash Chehata, orthopaedic surgeon, has seen the plaintiff for medico-legal purposes and provided a report. He confirmed the diagnosis following whiplash phenomenon.[6] He said that current and future treatment would not involve surgery. He notes the effect on the plaintiff’s lifestyle and capacity to work, which are broadly consistent with the plaintiff’s affidavit material.
[6]PCB 93
20Next, Mr White, in a report of 11 April 2019,[7] confirmed the diagnosis. He found objective signs of tenderness to palpation on the left side of the neck. He diagnosed chronic pain of the left side of the neck, shoulder and upper limb. He said there was sufficient evidence to support an ongoing work-related organic injury, bearing in mind this was a transport accident that occurred in the course of employment.
[7]PCB 130
21The other relevant medical report for the purposes of these reasons is that of Mr Simm, orthopaedic surgeon. In a report of 14 September 2021,[8] he confirmed the plaintiff had suffered an acceleration hypertension injury to the cervical spine which has caused the whiplash syndrome. He did not think there was any specific injury to the left shoulder as such. He said the findings on examination were consistent with a mild persisting painful dysfunction of the cervical spine due to unresolved whiplash injury.
[8]PCB 138
22In respect to prognosis he said, “…His prognosis is for persisting symptoms over an extended period of time.”
23Mr Simm was asked questions about the plaintiff’s work and his injury. He answered those questions when he said:
“Although he does not have any formal constraints on work duties, undertaking his work as a maintenance technician, he does have to self-regulate activities and modify the way he does certain work tasks. This requirement is likely to continue into the future. He could not undertake unrestricted heavy manual work, particularly work that involved handling heavy weights away from his body or above shoulder height.”[9]
[9]PCB 139
24Mr Simm made similar comments regarding domestic and leisure activities when he noted the plaintiff’s restrictions for those.[10]
[10]Ibid
25It is unnecessary, in my view, to say any more about the medicine, much of it is out of date, and as I say, of historical interest, particularly in circumstances where the injury is not in dispute.
26Next, I take into account, of course, the plaintiff’s affidavit evidence. Appropriately, and as already mentioned, this is not a credit case and the plaintiff was not seriously challenged about his affidavits. The thrust of the cross-examination was to confirm that the plaintiff was able to engage in a range of domestic and recreational activities and to engage in full-time employment, currently at a higher salary than at the time of the accident. But balanced against that, the plaintiff was not challenged as to his description of ongoing pain; interference with pleasurable activities with his family, particularly caring for his children; interference with pleasurable activities such as working on his own car or enjoying car-type interests. And also, importantly, the plaintiff was not challenged about the restrictions for work. True it is he is doing a real job with full-time hours, but equally and consistent with Mr Simm’s opinion, he is fortunate in that he has an employer that is able to accommodate his restrictions and that he has a role in which he can pick and choose a bit. And I accept his evidence about that.
27As mentioned earlier, there are some cases that are clearly serious and some are that clearly not. In my view, it is highly relevant that the plaintiff is still a relatively young man, now only 38 years of age, and, as has been noted in cases such as Stijepic v One Force Group Aust Pty Ltd[11] and more recently in Demmler v Transport Accident Commission,[12] a plaintiff’s age at the time of the accident and at the time the application is determined and the time that they will have to put up with injury and impairment consequences is a relevant factor.
[11][2009] VSCA 181
[12][2018] VSCA 284
28Accordingly, it should be kept in mind, in my view, that this is a motor car accident that occurred some considerable time ago now, in January 2014. The plaintiff has had persisting neck pain since then and there is no suggestion that he will have a cure. So, in other words, at the relatively young age of 38 years of age, he is now stuck with this pain for the rest of his life. That, in my view, is a highly relevant factor.
29The plaintiff also strikes me as someone who is stoic. He has a young family that he needs to provide for. He is continuing to work. As counsel for the plaintiff, Mr Valiotis, referred to, I take into account the comments of his Honour Nettle JA, as he then was, in Dwyer v Calco Timbers Pty Ltd (No 2),[13] that a stoic plaintiff should not be punished just because he is attempting to get on with his life in the face of constant pain, perhaps in circumstances where a less stoic individual would have succumbed to his injury.
[13][2008] VSCA 260
30In my view, balancing the competing interests, and taking a whole of view approach to the evidence, as I must, this case tips in favour of the plaintiff.
31In my opinion, relevant consequences include the level of pain that he has had, and at a relatively young age, the level of pain that he will have ongoing, the possibility of further invasive injections to manage that pain, the continued restrictions for even simple activity such as bathing and enjoying time with his small children, together with restrictions for domestic tasks, restrictions for more active sporting interests such as water sports and the like, as set out in his affidavit. In addition those consequences when combined, as of course they can be for the purposes of a TAC serious injury application, with his limitations for work – and by that I mean the limitations that he has deposed to, and which Mr Simm, as an illustration, accepts, that is an inability to perform full and unrestricted manual work, it seems to me that is a highly relevant factor for a young man. That if he was to lose his current employment, notwithstanding that he has had a past history of moving into alternate employments, there would still be a limitation on the range of jobs that he could look for. He could not reliably, according to the medical evidence, perform full and unrestricted manual work, where he is, effectively, a manual worker.
32When all of those matters are taken into account, in my view, as mentioned, this tips the scales, as it were, in the plaintiff’s favour and I am satisfied that he has a “very considerable” injury to his neck by reference to the combination of his pain and suffering and restrictions for work.
33The first order will be I grant leave to the plaintiff to commence a common law proceeding for injuries suffered in a motor vehicle accident which occurred on 14 January 2014. And I will otherwise hear from the parties as to the question of costs.
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