Mohanarengan v Transport Accident Commission
[2020] VCC 1692
•27 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02889
| SATHYANARAYANAN MOHANARENGAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 27 October 2020 | |
CASE MAY BE CITED AS: | Mohanarengan v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1692 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment of the spine – causation – subsequent accident
Legislation Cited: Transport Accident Act 1986
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak (1992) 2 VR 129; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Ms K Karadimas | Arnold Thomas & Becker |
| For the Defendant | Mr P D Elliott QC with Mr E Makowski | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1 This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (the “Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 9 November 2015 (“the transport accident”).
2 Viva voce evidence was given by the plaintiff on Zoom from India. Counsel later provided written submissions.
3 The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6)(c) provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
4 The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a):
“serious long-term impairment or loss of body function.”
5 The body function relied upon by the plaintiff in this application is the spine.
6 The enquiry under sub-paragraph (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.
7 The serious injury defined by sub-paragraph (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 itself constitute or be the producer of the impairment of a body function.[1]
[1]See Richards & Anor v Wylie (2000) 1 VR 79
8 In forming a judgement 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 at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”?[2]
[2]Humphries & Anor v Poljak (1992) 2 VR 129 at 140
9 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined and appeared via Zoom from India. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
10 There is no dispute the plaintiff suffered injury to his lumbar spine in the transport accident on the said date, following which he was conveyed by ambulance to Box Hill Hospital.
11 He had been involved in a transport accident the previous month, but it appears he suffered no injury in that collision, and he told a number of medical examiners of its occurrence.
12 “On the papers”, in addition to “seriousness”, the dispute in this matter appeared to be a medical one, with the defendant’s medico-legal examiners of the view that any spinal injury related to the transport accident had resolved, and those relied on by the plaintiff, who considered the effects of that accident continue.
13 However, the defendant further argued that the plaintiff’s involvement in a subsequent transport accident in September 2019 was an important issue in this proceeding. During the hearing, there was no significant challenge to most of the detail in the plaintiff’s affidavit, with the challenge being substantially in relation to his involvement in the recent accident.
14 The plaintiff had told no examiner, including his general practitioner whom he attended two hours after the recent accident, of its occurrence. Further, in his second affidavit, sworn on 6 January 2020, he made no mention of that accident, which occurred a week after he had sworn his first affidavit.
15 At his attendance with his general practitioner on 4 September 2019, the plaintiff complained of severe back pain, a further CT scan was arranged and a strong painkiller, Naproxen, was prescribed for the first time since the subject accident.
16 The issue then is whether the consequences of the subject accident are “serious” as at the date of hearing, excluding any role played by any injury suffered in the September 2019 accident.
The Plaintiff’s evidence
17 The plaintiff is presently aged thirty-nine, having been born in India in June 1981. He is married with a baby. He is presently with his family staying with his brother in India and unable to return to Australia because of the COVID-19 virus.
18 The plaintiff completed high school in India and then did a Diploma in Refrigeration Mechanics and Air Conditioning Mechanics. He had his own business from 1996 until 2008 repairing refrigerators and air-conditioning units (“his trade”).
19 At the end of 2008, he ceased the business and migrated to Australia alone in early 2009. Between 2011 and 2015, he worked in Australia on and off because he had to return to India at various times to care for his parents.
20 In 2011, the plaintiff worked as a refrigerator installer/cleaning filters at Rainbow Filters. He left that job because he wanted to start his own business. He studied for and obtained licences for disconnection and reconnection of electrical appliances, and then a refrigeration handling licence.[3]
[3]Transcript (“T”) 41
21 Instead of opening a refrigeration business, the plaintiff became a courier because he did not have the funds to open a business and buy tools and take out public liability insurance and WorkCover. By 2014, he had the requisite licences and Australian citizenship, but could not start his own business because of a lack of funds.[4] His mother died, and he had to spend money on treatment in India. He tried to collect some money through his friends “but it didn’t happen” so he started to work in his own business as a courier.[5] There were not the issues with insurance in this job as the plaintiff would have faced with operating a refrigeration business.[6]
[4]T42
[5]T44
[6]T43
22 Just before the transport accident, the plaintiff thought it was good to get back into working for someone and make money, and then come back to his plans of starting his own refrigeration business. In the week before the transport accident, he was on three months’ probation in a new job at Mech Air Services, helping install air-conditioning units in homes. That job involved a lot of lifting, carrying, twisting and bending to install units.[7]
[7]T45
The transport accident
23 On the said date, the plaintiff was driving along the Eastern Freeway. Traffic was banking up ahead. He was cruising at a low speed, when a vehicle came from behind and struck his car very quickly (“the transport accident”).
24 The plaintiff felt immediate pain in his low back, radiating to his legs. He could not leave his car. He asked the other driver to call emergency services and an ambulance attended. He was given some pain relief and conveyed to Box Hill Hospital.
25 The Ambulance Victoria Patient Care record dated 9 November 2015 read:
“Pt is a 34yo male who is generally healthy and well. This am pt was involved in a minor MVA. Pt was in a car travelling at approx 40km/h when he was struck from behind by a vehicle going at a similar speed. Pt was wearing his seatbelt and denies LOC or headstrike. Nil airbags deployed in either car. AV called as pt had back pain.”
26 On examination, the pain was described as tightness in the lumbar region, denied radiation, and aggravated by movement and palpation. Normal movement, sensation and temperature.
27 The plaintiff remained an inpatient at Box Hill Hospital for two days. On discharge, he was given some medication.
28 The Box Hill Hospital records (Eastern Health ED Attendance Summary 9 November 2015) indicated the plaintiff arrived at the Hospital at 7.59am and was discharged at 12.42pm the following day. No procedure was performed. The presenting problem was back pain. The triage assessment repeated the contents of the ambulance report, and added “self-extricate from car, immediate grabbing pain to lower back 8/10, denies altered sensation, good range of movement to limbs. Nil pain when still, pain on movement.”
29 The plaintiff had a lumbar spine x‑ray while at Box Hill Hospital. It was reported alignment appeared satisfactory, and there was no visible acute fracture. Prominent anterior paraspinal ossification was noted. A lumbar CT scan was also carried out at the Hospital, following which it was reported there was no significant spinal abnormality identified. In particular, there was no evidence of a fracture.
30 After a week, the plaintiff was permitted to return to work, which he tried to do. After only about four hours at Mech Air, he could no longer continue working due to severe pain in his low back going down his right leg. He could not cope with the job, which was too heavy for him with his problems bending, lifting and sitting because of pain.
31 The plaintiff saw his general practitioner, Dr Sanmuganathan, who ordered an MRI scan, which he understood showed a pinched nerve in the left lower region of his spine. He was advised by his doctor to stop working.
32 The plaintiff had a further lumbar CT scan in November 2015 organised by his general practitioner. It was reported there was mild L4‑5 canal stenosis with contact at the descending S1 nerve roots bilaterally and L5‑S1 facet degeneration. It was suggested, if clinically indicated, a CT-guided L5‑S1 epidural injection could be performed.
33 In late 2015, the plaintiff was referred to a specialist radiology clinic where he had an epidural injection.[8] It gave him very good pain relief for a long time. He believed it helped for about a year and a half, but he was still unable to work, and his general practitioner advised him to rest.
[8]16 December 2015 CT guided L5-S1 epidural – patient reported improvement in symptoms afterwards
34 In the two years he was off work, the plaintiff was looking for jobs through a TAC assisted job searching company. He went for several interviews; however, a number of air-conditioning-based roles only involved sales, not hands-on work. No one offered him a job because of his back injury, and he was unsuccessful obtaining work because he had to attach his TAC documents to his job applications.[9] The TAC was unable to get him any work in his trade.[10]
[9]T49
[10]T68
35 After about two years, in about 2017, the plaintiff returned to courier driving work for Australia Post. He continues in that role doing light delivery work as a subcontractor full time.
36 As of August 2019,[11] the plaintiff generally lifted nothing more than 5 kilograms, but occasionally 7 kilograms, and very rarely more. He wore a back brace and took Panadol as required, about every three hours. This helped him get through the day. His pain continued, however, and it was particularly worse at the end of the day. After work, he tended to have a hot shower. He used an Indian gel like Deep Heat that gave him decent short-term relief.
[11]First affidavit
37 Back pain was constant and situated in the middle of his back. It was made worse by extended postures and driving. Radiating right leg pain came and went, and there were bouts of this pain every day, several times a day. He also had right thigh pain and occasional numbness and tingling down the right thigh and leg but did not get left leg pain. He wore a brace most days, taking it off to sleep and shower.
38 Leaning and reaching forward were actions which caused particularly high levels of pain, and he tried to avoid them. He had difficulty bending, twisting and turning under any load or stress. He tried to minimise those movements but inevitably, they were required in his work.
39 He tried to avoid gardening and mowing the lawn and paid someone to do it. When he had tried these activities, he suffered a significant amount of pain.
40 The plaintiff woke up from sleep about once every hour or two, and believed he obtained about five hours of sleep overall. As a result, he felt fatigued in the morning and struggled to concentrate. He had to adjust his position during the night, and sometimes lay awake for hours.
41 Before the transport accident, the plaintiff enjoyed going to the gym every second day and did weights and cardiovascular work. As a result of being unable to go to the gym due to his back injury, he had put on 25 to 35 kilograms. He used to enjoy playing cricket socially with his friends about once a fortnight but had not been able to do so because of his back pain.
42 After the transport accident, the plaintiff started seeing psychologist, Dr Fred Wright, whom he saw every fortnight for about two years. Dr Wright diagnosed Post-Traumatic Stress Disorder (“PTSD”) related to the accident, and helped the plaintiff with sleep techniques, particularly his problem of ruminating about the accident in the middle of the night. Medication did not help him sleep.[12] He also had also had difficulty driving, which was no longer an issue.
[12]T58
43 Intimacy with his wife had been negatively affected due his back pain, which reduced motivation and concentration.
44 The plaintiff found it difficult to clean the house and help his wife. He struggled with household tasks like sweeping, bending and vacuuming due to the forward motions which caused him additional back pain.
45 The plaintiff could not run as a result of back pain and was forced to walk for exercise. He also struggled to climb stairs, and as a result, did so slowly and used a handrail if there were many stairs. He agreed he could only walk 100 to 200 metres.[13]
[13]T36
46 During the hearing, the plaintiff was shown surveillance film taken on 22 October 2019.[14] He did not know what happened to the film that showed him before he was shown standing in the shallows on the beach, as he had to go down stairs to get there.[15] He said: “You guys just recorded what you guys want, that’s right, isn’t it?” There are 35 to 32 stairs to go up and down to the beach. He was doing his physiotherapy exercises while filmed at the beach.[16]
[14]Exhibit 1
[15]T39
[16]T40
47 The plaintiff has been advised by his physiotherapist to walk sideways in deep water. He has gone to the beach about fifteen times to do these exercises.[17]
[17]T67
48 The plaintiff swore a further affidavit on 6 January 2020.
49 He continues to suffer constant back pain and regularly experiences pain down his right leg. It varies from day to day, but it is always present.[18] He is still having the chronic pain he was experiencing in mid-2019.[19] Back movement is restricted. The pain escalates if he is seated for too long, and driving aggravates his back pain.
[18]T12
[19]T68
50 While he continues to work as a self-employed courier driver, the plaintiff deposed he only drives in the Melbourne metropolitan area.[20] He copes with his current duties because the items he delivers are very light, and he is usually only driving short distances. However, by the end of a workday his back pain is much worse.
[20]In cross-examination, he did not mention any difficulties with long drives for work
51 Due to his back injury, he does not believe he will ever be able to work in his trade, because he finds it difficult lifting heavy items and working in awkward positions. This was a job he had been doing since he finished school. He was very passionate about it, and it was his plan to open his own business in Australia. He is devastated that because of his back injury he is unable to work in his trade. He has now lost his trade and his passion.
52 As a courier, he earns less money than he was able to in his trade. In the financial year ending 30 June 2018, his taxable income was $2,377. His annual salary at Mech Air Services was $55,000 plus superannuation.[21]
[21]Payroll advice November 2015
53 The plaintiff gets up at 4.30am to get ready for work, which starts at 6.15am, and he often works until 7.00pm.[22] He agreed that sometimes he did deliveries to the country. He could drive up to 158 kilometres in a day to deliver things, and sometimes he worked up to 60 hours a week delivering blood and plasma products. If he was working in the metropolitan area, he could do around ten to fifteen jobs a day.[23]
[22]T50
[23]T51
54 The plaintiff is the only driver and cannot afford to employ another driver in his courier business.[24] He agreed the business was pretty busy in 2019.[25]
[24]T53
[25]T51
55 A summary of the invoices from the plaintiff’s courier business Mohan & Sons Pty Ltd showed gross turnover of $88,061 with income of $81,016 for 2019.
56 It is still his plan to have his own refrigeration business, but it would take him three to four years to earn the necessary money to set it up. However, he cannot work hands-on and would have to hire someone in the business because he cannot do the physical work involved in the job. He would need about $170,000 to set himself up in his own business.[26] He would need to accumulate money to pay staff eventually.[27]
[26]T55
[27]T56
57 The plaintiff is still restricted in his ability to perform a range of activities. Bending, lifting and twisting placing strain on his lower back aggravate his symptoms. He has difficulty with prolonged postures because of back pain and is able to only lift light things. His sleep is still significantly affected by his back pain, and he only gets a few hours of uninterrupted sleep before he is woken by pain.
58 The plaintiff’s wife, Amala, and son, Iyyanjeshwanth, who is almost one, currently live in India with his brother because he is unable to financially provide for them on his low income as a courier. The plan was for them to return to Australia in mid 2020. They will come back when he is allowed to after the lockdown.[28]
[28]T54
59 The plaintiff continues to wear his back brace. He takes about six Panadol Osteo a day and also uses Indian gel. He is currently taking herbal medicine in India and has no doctor there. He used local painkillers, but they did not really work.[29]
[29]T57
60 In cross-examination, the plaintiff said he attended his general practitioner fortnightly from 2017 because he was “under some treatment plan for [his] back pain”. He agreed, as was noted by his doctor in September and October 2017, his condition had improved and he felt good.
61 When it was suggested there were not many attendances on his doctor from 2017 until 2019, and then a significant worsening noted on 4 September 2019, the plaintiff said:
“Maybe they have a do an injection. Maybe it got lost. ... maybe expired.”[30]
[30]T32
62 The plaintiff had physiotherapy at his general practitioner’s surgery until 2016. He continues to do exercises and also walks on the beach as suggested by his physiotherapist.[31]
[31]T67
63 The plaintiff continues to feel depressed and irritable because of his inability to do things he did pre-accident. He feels so frustrated that his condition has not improved, and he is no longer the person he used to be. He has always been a strong person and never been the type of person to complain, and he tries to make the best of his present situation and does things within his current limitations.
Transport accident – 4 September 2019
64 Cross-examination focussed mainly on the plaintiff’s involvement in a transport accident on 4 September 2019 (“the 2019 accident”). He had not mentioned that accident in either affidavit or to any treater or medico-legal examiner.
65 The plaintiff agreed that at the time of the 2019 accident in Hotham Street when driving his white Toyota HiAce van, he drove into the back of the car in front.[32] He explained that “there were no injuries to [him], no damage to [his] vehicle, nothing happened. [He] was not injured in the accident.”[33]
[32]T13
[33]T15
66 The plaintiff was asked about his general practitioner, Dr Sanmuganathan’s entry of 4 September 2019, which read as follows:
“Surgery Consultation:
C/O SEVERE BACK PAIN
PAIN RADIATED TO RIGHT LEG.
ROM - REDUCED
ALSO STATED WEAKNESS OF THE RIGHT LOWER LIMB.DO EXERCISE EVERY DAY FOR HIS BACK TAUGHT BY PHYSIOTHERAPIST.”[34]
[34]PCB 108
67 Dr Sanmuganathan also reported that on examination of the lumbar spine, there was restricted range of movement. The reason for contact was “Back pain - acute on chronic”. Management was:
“REST
PAIN KILLERS
REPEAT - CT
R/V
SPECIALIST REFERRAL WITH REPORT.”
68 Naproxen tablet was added and diagnostic imaging – a CT scan of the lumbar spine was requested.
69 The plaintiff attended on that date because his doctor had called him and said he wanted to meet for the TAC case. He did not go to the doctor because of the 2019 accident, because he was never involved in any injury on that day.[35] He did not mention any the details of that accident to the doctor on 4 September 2019 because nothing happened to him, and nothing happened to his vehicle. His doctor asked him what was happening, and he told him he was having constant pain every day.[36]
[35]T16
[36]T17
70 His doctor said he wanted to “send the details to TAC about [me]”.[37] The plaintiff usually received calls from the reception “Doctor want to see you”. He would then go and have a chat with the doctor. He had received these calls “most likely every one to two months”.[38]
[37]T17
[38]T18
71 The clinical note of 3 September 2019 read:
“Practice Admin
Medical records to courts (TAC) and arnold thomas & becker lawyers gave to Adrian to register post (both same medical records for both places).”
(sic)
72 In smaller text, there were details of an SMS. It was noted that Madu Gunatilaka scheduled an SMS for Arnold Thomas & Becker that was due on 2 September 2019. The SMS read:
“… Your test results had arrived and … [the general practitioner] has requested that he/she discuss them with you. Please call Rowville Medical Clinic … and make an appointment to discuss your results. Alternatively, you can book an appointment online … We look forward to seeing you soon.”
(sic)
73 The plaintiff was unable to attend his doctor on 3 September 2019 and he asked to postpone the appointment to the following day. That is what happened. He did not go to the doctor on 4 September because of an accident that day. He did not know “that accident which is coming on this TAC case”.[39] He did not know why this accident on 4 September 2019 was brought up. It was not his fault.[40]
[39]T19
[40]T20
74 The plaintiff stressed “they usually called … [him] and said they were going to send this to … [him]”. They usually “consult” everything with him beforehand. That was what was happening every time.[41]
[41]T22
75 The plaintiff agreed that two hours after the 2019 accident, he saw Dr Sanmuganathan at Rowville. He did not tell him he had had an accident two hours earlier, because nothing happened to him. He only had the back pain – “So … [I] explained to him like the pain is constantly there, nothing new in my body so no new pain.”[42]
[42]T21
76 When asked about the tests referred to in the SMS note, the plaintiff said the doctor requested he discuss the results, and that was what he was doing there on 4 September 2019. The TAC had to conduct some tests before this case came to Court. They were back pain tests. They were not x‑rays or tests like that.[43] It was an earlier physical examination which was organised through the TAC and his lawyers.
[43]T24
77 The plaintiff agreed Naproxen was first prescribed on 4 September 2019 – “That’s for the chronic pain I’m having before”. He was taking constant painkillers each and every day to do his day-to-day job. They did not work, so he asked for a “higher one”. Earlier, he had been prescribed medication, but it did not work, so he went back to Panadol. He disagreed he was complaining of increased pain in his spine on 4 September and that that was why he was given stronger drugs and a CT scan was ordered.[44] He did not attend the doctor because of the accident two hours earlier. It was an ongoing issue he was having. It was a coincidence.[45]
[44]T27
[45]T28
78 When asked why he had told doctors about the October 2015 accident in which he was not injured yet did not tell them about the 2019 accident, the plaintiff explained that was because nothing had happened in the 2019 accident. He was wearing his seatbelt and “I got complete protection to my back and everything, nothing happened to me on that day”. He did not tell the doctor because he thought it was not necessary, because he “didn’t get any injury … that day”.[46]
[46]T29
79 In response to my question, the plaintiff said:
“I should have tell them but I forget about that, too much stress.”[47]
(sic)
[47]T30
80 The plaintiff then agreed he did get worse for the new drugs to be ordered and for a further CT scan to be arranged in September 2019.[48]
[48]T33
81 In re‑examination, the plaintiff attributed his increased back pain to driving at work.
82 When asked whether anything had happened to his back in the two weeks before the September 2019 accident,[49] the plaintiff explained he had to drive a medical item “so [he] couldn’t take any rest on delivering that item … so they said it’s a liver”. He took the liver to the Bendigo Hospital, 158 kilometres away. After he returned to Melbourne, he suffered severe back pain with radiating pain into his right leg.[50]
[49]Clinical note re September 2019 CT scan - “… complains of severe back pain last two weeks? Radiating pain.”
[50]T65
83 Nothing happened in the 2019 accident.[51] It was a minor accident. The air bags went off. That accident then did not cause any change in his symptoms. That morning, he had taken Panadol Osteo.[52]
[51]T65
[52]T66
The Plaintiff’s condition before the 2019 accident
84 In his affidavit sworn in August 2019, the month before the 2019 accident, the plaintiff described his mid-back pain as constant, made worse by extended postures and driving. There was variable right leg pain and occasional numbness and tingling in the right leg. He had difficulty sleeping due to back pain. His movements and postural tolerances were restricted, and his activities were limited accordingly. He was still wearing a back brace and took Panadol as required, about every three hours, and used an Indian gel like Deep Heat.
85 The plaintiff had two years off his work as a refrigeration installer post-accident. He had been unsuccessful obtaining work in that field because of his back condition and had chosen to start his own business as a courier.
86 Before September 2019, he had been unable to return to social cricket and other activities such as regular gym work which he enjoyed as a young man.
87 The plaintiff had had medical treatment from his general practitioner following the transport accident. He was prescribed painkillers and he was referred for an epidural injection, which he had later in 2015, which gave him some relief.
88 There were regular accident-related attendances on Dr Sanmuganathan’s practice until October 2017. The plaintiff also had physiotherapy there.
89 However, the Clinic records tendered by the defendant indicate that he had not attended the Clinic every fortnight since 2017 as he claimed. He was not having treatment for his back throughout. As he agreed, there was some improvement in September and October 2017, as his general practitioner recorded.[53]
[53]T32
90 The plaintiff was first seen for his transport accident injury on 18 November 2015. It was then noted he had had an accident on the said date, involving trauma to the back. He could not move his back after the incident and was transferred to hospital via ambulance. There was no weakness, and mild numbness was felt in the left leg. There was no neck pain. He was reassured and educated regarding the use of medication and instructed to remain active and resume normal activities.
91 On 24 November 2015, the plaintiff attended, complaining of severe back pain radiating to the legs. The results of a recent CT scan were discussed and a CT-guided L5-S1 epidural injection was arranged. There were further attendances for back pain on 2, 9 and 14 December 2015. He saw a physiotherapist there on 14 December 2015, at which time an injection had been approved.
92 On 21 December 2015, the plaintiff was feeling better after the injection. There was some mild improvement noted over December, but in January, he attended for insomnia and back pain. There were ongoing physiotherapy attendances during that period.
93 On 13 January 2016, he complained of poor sleep, stress and anxiety, and a mental healthcare plan was prepared. The following month, he reported feeling better. There was no obvious radiating pain, but he still had pain in the lower back.
94 On 18 February 2016, he still complained of back pain and sleep difficulties with only a mild improvement. Physiotherapy continued and in late February, it was reported the plaintiff was “left-sided sore.”
95 On 3 March 2016, it was noted the plaintiff had been walking at the beach and was good. On 17 March 2016, he came in for a review and said he felt better. On 22 March 2016, there was a marked improvement in back pain reported and this continued until 31 March 2016. A lumbar support was then fitted.
96 On 7 April 2016, it was noted the back was getting better. There was less pain and he was feeling better a week later. When he saw the physiotherapist on 15 May 2016, his back felt good and he also told his general practitioner on 28 April that he was still searching for a job and may get one in the middle of May.
97 On 12 May 2016, it was noted that the plaintiff was most likely going to get a job in the next couple of weeks as a meter reader. He was still searching for a job on 29 May 2016.
98 On 30 June 2016, the physiotherapist reported “back’s good at gym.”
99 On 3 July 2016, it was noted the plaintiff was improving, “happy to join with modified duties”.
100 On 14 August 2016, the plaintiff had been overseas. He was still having ongoing pain and still had similar limitations, and there had been no improvement or deterioration in his symptoms.
101 On 30 August 2016, there was limited range of back movement. There were then a number of attendances for unrelated matters. The following month, the plaintiff reported getting occasional pain, “happy to work on limited duties, finding it hard to get a job”.
102 On 13 October 2016, when the plaintiff attended for a TAC assessment, he was actively finding a job, but no one was happy to employ him. Subsequent attendances related to his weight concerns.
103 On 7 January 2017, the reason for contact was back pain, left-sided lower back, nil improvement. The plaintiff was still searching for work that month. In February, he still had pain and no improvement.
104 June and July 2017 attendances appear to relate to the plaintiff’s diet.
105 On 8 September 2017, mild back pain was noted. “Started on a new job. Feels happy. Feels better with hot compression and couple of Panadol.”
106 The last specific mention of back pain before September 2019 was on 15 October 2017. It was then noted the plaintiff felt “better with days, busy with new job, on and off painkillers – also on lumbar support belt”.
107 In re‑examination, the plaintiff explained that attendances over three weeks in mid 2019 were for his toe.[54]
[54]T63
108 It is not the case however that there was no complaint of back pain after October 2017 before the 2019 accident. The plaintiff did attend Dr Sanmuganathan on 28 July 2019, when it was then recorded:
“CAME IN FOR LETTER DISCUSSION FROM ARNOLD THOMAS & BECKER LAWYERS. HE STATED HE DID NOT GET HIS FULL PAYMENT FROM TCA.”[55]
(sic)
[55]DCB 109
109 Under “Reason for contact”, Dr Sanmuganathan had written:
“LETTER DISCUSSION.
Listening and Advice.”[56]
[56]DCB 109
110 While Dr Sanmuganathan did not specifically mention any complaint of back pain or restrictions in that note, having read his report of 31 July 2019, I accept a complaint was in fact made by the plaintiff.
111 In that report to the plaintiff’s solicitors, he advised that the plaintiff was a regular patient of the clinic who was involved in a transport accident on the said date. When first seen on 18 November 2015, the plaintiff reported severe back pain following a motor vehicle accident. The diagnosis was lower back pain and lower backache, with radiculopathy involving S1 nerve roots.
112 Dr Sanmuganathan noted that the plaintiff had been through regular rehabilitation for his low back issues after the accident. He took painkillers and underwent regular physiotherapy. He was not fit to do any kind of work, and moreover, he was very depressed due to his situation. For further pain relief, epidural was given.
113 The plaintiff was not only affected physically but also mentally. He had had poor sleep, which was managed with medication and non-medication methods.
114 The prognosis was good, noting the plaintiff feels better day by day:
“Patient already got a job. He is happy with the new job. He is on mild painkiller if needed basis. He wears lumbar support belt especially long-distance drive.”
115 Dr Sanmuganathan noted that the plaintiff’s last visit was two days earlier (29 July 2019) after a long period of break. He then complained of back pain still going on, mild to moderate in severity. In addition, he stated he was unable to lift weights of more than 7 kilograms. He felt pain in the back when he lifted heavy objects.
116 There is therefore confirmation by the plaintiff’s general practitioner of the plaintiff having ongoing back problems less than two months prior to the 2019 accident, although that doctor failed to provide these details in his clinical entry.
117 This note is also consistent with the plaintiff’s evidence that the Clinic would contact him to attend whenever the doctor had requests from the TAC or his lawyers for reports or records.
118 The medico-legal report of Professor Peter Teddy, neurosurgeon, who saw the plaintiff on 3 September 2019 (the day before the 4 September accident) at the request of his solicitors, is very significant.
119 Professor Teddy noted the transport accident circumstances and subsequent treatment, including an epidural that helped a great deal. On examination, the plaintiff reported the muscles around his spine remained very stiff and he was still doing exercises every day.
120 The plaintiff then described pain radiating to the right thigh and associated with numbness, worse over the previous two weeks. It was severe when he pushed on the accelerator. He was also suffering low back pain and had been wearing a brace full time for the previous week, asserting he had too much pain. This had never been previously present, and he had trouble now lying in bed. Two Panadol every three hours would work.
121 The plaintiff then had difficulty standing and had a repeat epidural booked with his general practitioner. He had stopped doing long drives but was recently asked to go to Bendigo. The long drive had affected him significantly.
122 Following examination, Professor Teddy concluded the plaintiff had injured his lower back as a result of the transport accident. The injury seemed to have been largely of a soft tissue nature, with aggravation of mild spondylosis/joint arthropathy. There was no convincing clinical evidence of radiculopathy other than having a mildly reduced right ankle jerk.
123 Professor Teddy thought it would be unlikely the plaintiff would be able to return to his original heavy manual work installing air-conditioners. He appeared to be coping on a more satisfactory basis as a postal delivery worker. In the future, it was likely the plaintiff would suffer with varying degrees of low back pain and possibly leg pains.
Psychological injury
124 Before the 2019 accident, the plaintiff had seen Dr Wright, psychologist, for eleven sessions in 2016 for treatment of post-accident PTSD. The plaintiff left his care after resolving issues that had been present within the PTSD diagnosis.
125 In his March 2018 report, Dr Wright noted the plaintiff had been very active in his treatment process and had responded well to treatment. The plaintiff had indicated that he still felt some stress from going through the claims process. He was invited to seek further treatment if required but had not made a subsequent appointment.
126 The plaintiff was also examined at his solicitors’ request by Dr David Weissman, psychiatrist, in June 2018. He thought the plaintiff had sustained and developed a mild group of accident-related psychiatric conditions and mental injuries.
127 Dr Weissman considered on purely psychiatric grounds alone the plaintiff was suffering from slight residual traumatisation features only, and a small amount of non-secondary psychiatric impairment. He was also suffering from a mild mixed reactive anxiety and depressive syndrome as a consequence of, or secondary to, his accident-related pain, injuries, disabilities, limitations and restrictions.
Spinal impairment
128 An examination was also arranged by both parties with Dr David Kennedy, sports and industrial physician, on 29 January 2018.
129 Dr Kennedy noted the transport accident circumstances and subsequent treatment, including an epidural injection which assisted the plaintiff significantly.
130 The plaintiff was off work for two years and commenced on a return to work program in mid 2017 as a courier driver for Australia Post, having initially had significant problems getting work because of his TAC claim and the risks of future employment because of his ongoing back problems. However, his current job had no heavy boxes, and all envelopes and small boxes weighed less than 5 kilograms.
131 The plaintiff was then using a back brace and taking Panadol on an as-needs basis. He complained of persistent lower back pain, worse if not wearing the brace. Pain was mainly in the left lower back but extended into the right groin and down the front of the right thigh and mid-aspect of the leg. There was occasional numbness and tingling down the right thigh and leg. There were no particular problems with the left leg and thigh. Prolonged tolerances and various movements caused increased back pain.
132 On examination, there was tenderness and tightness in the lumbar area. There was asymmetrical loss of active range of motion, particularly on extension and lateral flexion. Straight leg raising test was tight, but the stretch test was negative.
133 Dr Kennedy had available the Box Hill Hospital investigations. He concluded the plaintiff sustained a significant myofascial injury to his lumbar spine following the transport accident. He thought the injuries sustained were consistent with the description of that accident, and there were no obvious discrepancies between the current symptoms’ presentation and clinical findings on examination.
134 In his view, the plaintiff would benefit from a physiotherapy coordinated core stretching and strengthening exercise program. He considered the plaintiff should be able to continue with his courier work, provided he was able to change his workstation from sitting to standing as required, and also avoid manual handling of loads greater than 5 kilograms.
135 The defendant had not arranged any medico-legal examination of the plaintiff before the 2019 accident.
4 September 2019 accident
136 It was strongly suggested to the plaintiff in cross-examination that he attended Dr Sanmuganathan on 4 September 2019 because of a significant injury suffered in the further transport accident that morning.
137 While on first glance that appeared to be the case, raising potential credit issues for the plaintiff, a closer reading of the Clinic’s notes confirmed the plaintiff was in fact attending a pre-arranged appointment. The SMS to be sent to him on 2 September 2019 confirms the pre-arranged appointment was not a reconstruction on his part and supports his consistent evidence in this regard.
138 On his way to that appointment, the plaintiff had the further accident. I accept that he did not attend for any injury suffered in the accident that morning, although it was unusual that he did not tell Dr Sanmuganathan of that recent accident or mention it to anyone else when he did mention the October 2015 accident in which he did not suffer injury.
139 While the SMS refers to an attendance to discuss tests, I accept that this rather unusual method of communication was how this general practitioner arranged for his patients to attend, as earlier notes confirm.
140 As counsel for the plaintiff submitted, as seen from multiple SMS scheduling of appointments in the notes, all SMS messages sent to the plaintiff from the Clinic tend to be generic and state “your test results have come in and the doctor’s requested that he/she discuss them with you”.
141 Although the SMS referred to test results, it would seem the consultation was to do with a report request from lawyers. Dr Sanmuganathan, on 4 September 2019, consistent with the Clinic having been asked to provide a report, carried out a detailed examination of the plaintiff that day.
142 The doctor then sent the plaintiff for a CT scan on 7 September 2019, where, in the clinical notes it was recorded:
“MVA 2015 was on physiotherapy and epidural injection. Complaining of severe back pain last 2 weeks ? radiating pain?”
143 While Dr Sanmuganathan is not a great notetaker, this clinical note relating to the CT scan confirms a complaint made by the plaintiff of severe pain over the last two weeks, consistent with the plaintiff’s history to Professor Teddy.
144 There is also an explanation for the plaintiff’s severe back pain reported on the 4 September 2019 visit other than the accident that morning.
145 While he made no mention to his general practitioner, in his affidavit or during cross-examination of any back problems suffered while doing long drives for work, in re-examination, he described a 158-kilometre drive to Bendigo causing an aggravation of his back pain.
146 The plaintiff made similar complaints to Professor Teddy on examination on 3 September 2019.
147 Invoices tendered to the Court showed the plaintiff did make a trip to Bendigo on 29 August 2019[57] and this is consistent with his evidence[58] that he went to Bendigo prior to 4 September 2019.
[57]Invoices 6184, 6401
[58]T65
148 The plaintiff’s records also show, on 20 August 2019, the plaintiff drove from West Melbourne to Traralgon, 167 kilometres, and on 28 August 2019, a trip from West Melbourne to Wangaratta of 239 kilometres.
149 Taking these matters into account, I accept the plaintiff’s evidence that he did not suffer any further injury in the September 2019 accident and that his vehicle was not damaged. The police accident report records no injuries to the plaintiff in that accident, or any damage to his vehicle, consistent with his evidence.
150 In those circumstances, what appeared initially to be a significant issue with the plaintiff’s credit is not of concern. Further, there was nothing shown on the short surveillance film that showed the plaintiff behaving in any way inconsistent with his evidence of his pain and level of restriction. In fact, his attendance at the beach was consistent with his medical advice. Also, no medical practitioner suggested the plaintiff was embellishing his condition on examination. While the plaintiff exaggerated the number of visits to his doctor in recent times, I found him generally to be a truthful witness and I accept his evidence as to his ongoing pain and restrictions following the transport accident.
Medico-legal evidence post September 2019 accident
151 I am required to consider whether any accident-related spinal impairment is serious as at the date of the hearing.
152 Since the September 2019 accident, both parties have arranged a number of medico-legal examinations.
The Plaintiff
153 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in December 2019.
154 The plaintiff told him of the transport accident circumstances and subsequent treatment. He made no mention of the September 2019 accident.
155 The plaintiff then reported constant low back pain, about 8 to 10 out of 10, aggravated by prolonged postures and various movements. He was then taking Naproxen SR tablets, three a day, in addition to Panadol Osteo of the same quantity. He saw his local doctor generally every three weeks.
156 The plaintiff reported he was able to undertake normal activities of daily living, did minimal domestic tasks, and rarely cooked. He did not undertake any recreational activities.
157 Mr O’Brien had available the 2015 investigations and also the September 2019 CT scan. He noted that there was reportedly ankylosis of the left sacroiliac joint, and early mild ossification, with large anterior osteophytes in the lower lumbar spine. The report indicated changes were more advanced than the November 2015 CT scan.
158 Mr O’Brien noted the current signs were subjective and involved very definite restriction of lumbar movement, accompanied by the complaint of pain, but no current evidence of nerve root compromise.
159 Comparing the reports of the 2015 and more recent CT scan, he noted the mention of ossification on the latter, the report indicating some involvement of the ligamentum flavum and canal stenosis, changes described as being more advanced than seen in 2015.
160 Mr O’Brien thought the plaintiff’s symptoms and signs did not suggest inflammatory pathology or indeed any evidence of canal or nerve root stenosis. He would therefore consider the diagnosis of ossification of the posterior longitudinal ligament in the upper lumbar spine is in fact the source of symptomatic pathology. Indeed, he would conclude that the plaintiff does present with chronic non-specific back and right leg pain, as signs, in his opinion, do not precisely define the pathology underlying the pain generation.
161 Mr O’Brien considered the injury was consistent with the stated cause. He concluded the plaintiff now appears to have well-established chronic back and leg pain, suggesting a poor prognosis.
162 Currently, from the physical perspective, he thought there is no possibility the plaintiff could undertake his trade. Indeed, he is physically incapable of undertaking totally unrestricted manual work. He noted the plaintiff’s attempts in suitable employment, which he thought the plaintiff would remain capable of doing. However, there was little possibility of him returning to pre-injury duties or indeed any employment which required significant manual work. In his view, the plaintiff remains mildly limited in his general, social, domestic and recreational activities, and that will be ongoing.
163 Dr Justin Lewis, psychiatrist, examined the plaintiff in October 2019.
164 Dr Lewis noted the transport accident circumstances and the plaintiff’s complaint of chronic lower back pain thereafter.
165 The plaintiff described some low-grade traumatisation symptoms relevant to the accident, but they had significantly improved with the passage of time.
166 The plaintiff gave a history of depressed mood soon after the transport accident on a background of pain, physical restrictions, occupational incapacity, and the recognition he was dealing with a chronic pain condition. He continued to grieve the loss of his career as an air-conditioning mechanic, one largely driven by a career ambition to build a successful company in Australia.
167 Dr Lewis noted the plaintiff was then working 50 to 55 hours a week.
168 He thought the plaintiff presented as rather demoralised and despondent on a background of chronic pain symptoms. He presented as an individual who had lost confidence, and his role as a provider under the circumstances had been significantly undermined. He had continued to struggle in a financial sense and had lost the opportunity to spend valuable time with his wife and young child, as they returned to India for additional support.
169 Dr Lewis described the plaintiff’s response to illness as resourceful and adaptive, and noted he had been motivated in regard to his psychological recovery and continued to use anxiety management techniques.
170 Dr Lewis thought the plaintiff presented with a Chronic Adjustment Disorder with depressive features. There was also some lowering in mood, poor motivation, sleep disturbance, and cognitive difficulties on a background of pain and physical restrictions.
171 In his view, the plaintiff’s psychiatric condition had likely stabilised in accordance with the likely chronicity of the underlying medical condition. His psychiatric condition was inextricably linked to the cause of the underlying medical condition. He was likely to suffer from mood symptoms so long as he contended with chronic pain and physical restrictions.
The Defendant
172 Mr Kevin Siu, neurosurgeon, examined the plaintiff on 7 October 2019.
173 The plaintiff told him about the transport accident circumstances, his subsequent treatment at Box Hill Hospital and later epidural.
174 He also told Mr Siu he still took two to nine tablets a day, simple analgesics such as Panadol. However, he saw his general practitioner maybe once every two to four weeks to have his medication reviewed.
175 On examination, the plaintiff was wearing a brace. His gait was normal and there were no spasms of the paraspinal muscles. He expressed some tenderness on the left. There was no sensory impairment of weakness in any muscle group.
176 The plaintiff did complain he had trouble lifting the right leg, the so-called “bad leg”. He reported trouble with weight bearing on the right and also when lifting the right leg. Mr Siu attached minimal significance to those complaints.
177 Mr Siu thought the November 2015 CT scan was pretty normal for a thirty-eight-year-old who had performed labouring duties.
178 Having been told the transport accident circumstances, Mr Siu found it hard to accept there would be an injury to a lumbar disc. There was no axial loading; however, there may be some twisting when restrained in a safety belt, but that did not really predispose the occupant to lumbar disc injury.
179 Mr Siu noted that although the plaintiff did not lift anything heavy, his job involved a fair bit of driving and the parcels weighed about 4 kilograms.
180 Mr Siu believed the plaintiff sustained a soft tissue injury to the lower back. He certainly had pain in the first few weeks but was unable to resume work duties.
181 Mr Siu thought the injury had long since resolved and the prognosis was good. He did not believe the plaintiff sustained any spinal injury and that he sustained a soft tissue injury, certainly attributable to the November 2015 accident.
182 The plaintiff made no mention of the October 2015 accident or the 2019 accident.
183 Mr Siu did note the plaintiff may find it impossible and, indeed, did not attempt to return to work as a refrigeration mechanic, but certainly had been able to work up to sixty hours a week as a courier.
184 Dr Anthony Menz, consultant orthopaedic surgeon, examined the plaintiff on 22 October 2019.
185 Having noted the transport accident circumstances and subsequent treatment, Dr Menz mentioned the October 2015 accident in which the plaintiff was not injured.
186 The plaintiff was then not having any passive treatments and the only medication was Naprosyn and Panadol. He would rate his back pain as 7 to 8 out of 10 and he got some radiation into his right buttock only. There was no altered sensation.
187 Dr Menz noted the plaintiff could do a lot of domestic chores. He obviously could drive his car, because he worked as a courier, but had a limited walking distance of 100 to 200 metres and could only sit for about thirty minutes.
188 On examination, straight leg raising was to 20 degrees on the right and 70 degrees on the left. Reflexes were normal and active, as was motor power in both lower limbs. The plaintiff had decreased non-anatomical sensation in the whole of his right leg and his left sensation was normal.
189 Dr Menz noted the November 2015 CT scan, which showed no abnormality of the lumbar spine.
190 Dr Menz thought the plaintiff had sustained a soft tissue injury only in the transport accident, with the CT scan on the day of injury reported as normal. He could not understand why the plaintiff continued to have significant lower back pain some four years later. He believed the soft tissue injury at the time of the transport accident had now resolved and he did not know why the plaintiff continued to have symptoms. The prognosis for resolution must be poor in those circumstances.
191 There were no other pre-existing or other unrelated conditions.
192 Dr Menz noted the plaintiff had returned to work as a courier, working six days a week, and had some interference with leisure activities and activities of daily living. He made no comment as to the plaintiff’s ability to work in the refrigeration business or any heavy manual job. However, he did not believe the transport accident was the cause of the plaintiff’s ongoing incapacity with regard to any domestic and leisure activities.
193 Dr Andrew Firestone, consultant psychiatrist, examined the plaintiff on 5 November 2019.
194 The plaintiff agreed his lower back is best described now as an ache. He was only taking Ayurvedic medicine until two months earlier, when he commenced Naproxen. He had not been prescribed an antidepressant.
195 The plaintiff also told Dr Firestone he attended his local medical officer every two months for Naproxen prescriptions, which he takes daily for pain.
196 The plaintiff reported his back pain woke him several times during the night. He said it was a matter of great sadness he had to give up his career as an installer of air conditioning and he had intended to start such a business soon, even though he will not be able to labour in it himself due to the heavy lifting required.
197 The plaintiff reported becoming sad and fearful if he saw an accident, but otherwise drove normally and had never had a nightmare about the accident. He reported lying in bed on his day off, crying for his father who died in 2017 and for his own unfortunate life since the accident.
198 Dr Firestone thought there were no significant symptoms on a psychiatric basis resulting from the transport accident. In his view, the plaintiff had a Somatic Symptom Disorder with persistent predominant pain of mild severity (Chronic Pain Syndrome) and an Adjustment Disorder with mild to moderate depressive features.
199 The plaintiff used a back brace, could drive freely for many hours, stopping frequently and stretching his back. He walked some 2 to 3 kilometres daily in total.
200 Lower back pain had made it impossible for the plaintiff to work at his trade and with resourcefulness, he had adapted to driving as a courier instead. He was fully independent in activities at home. His leisure activities were unaffected by the accident, except for social cricket games.
201 Dr Firestone thought the prognosis was uncertain. He noted, to date, the plaintiff had not required any antidepressant; however, it was possible that an antidepressant, such a Zoloft, might provide some relief for his pain and depressive feelings.
Surveillance film
202 There was a short film of the plaintiff on 22 October 2019. He was initially shown attending 356 Collins Street, Melbourne, where he had an appointment with Dr Menz. He then drove his van to Sandringham beach, where he was shown standing in the shallows for about eight minutes. There was then a gap in the film, and he was shown boarding his vehicle on the roadway.
Police accident reports
203 The police report from the transport accident, accident report number T20150023197, set out that the other driver who hit the plaintiff’s rear was given a penalty notice. The plaintiff suffered injury in the accident and was transported by ambulance to Box Hill Hospital.
204 The police accident report, T20190018724, in relation to the accident on 4 September 2019, set out that accident occurred at 12:43 in Hotham Street, St Kilda. The accident occurred when a vehicle was stopped at a red light and struck in the rear by the plaintiff’s vehicle, which the police noted had failed to stop safely behind the first vehicle, therefore causing an accident. The accident caused damage to the rear of the first vehicle.
205 The total of persons not injured was one. In the section that related specifically to the plaintiff, it was noted he was not injured. The other driver suffered a neck injury.
Overview
206 I am satisfied that the plaintiff suffered a soft tissue injury/aggravation of spondylosis, without neurological involvement, in the transport accident.
207 Professor Teddy and Mr O’Brien provided a detailed analysis and path of reasoning as to the nature and extent of the plaintiff’s injury from the transport accident and its ongoing effects.
208 Mr Siu and Mr Menz simply concluded that any contribution from the transport accident had ceased, without providing any explanation or timeline for that opinion. Although they did not know of the 2019 accident, it clearly made no difference to their opinion, having found any soft tissue injury had resolved in any event.
209 As a consequence of his transport accident injury, the plaintiff has constant back pain, at times radiating down his right leg. Lumbar movements are restricted, and he has particular difficulty with bending and lifting heavier items. He also continues to experience the difficulties deposed to in both affidavits, including problems with sleeping.
210 The plaintiff is still a relatively young man, now aged only thirty nine.
211 In Stijepic v One Force Group Aust Pty Ltd,[59] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[59][2009] VSCA 181 at paragraph [43]
212 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it is relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
213 In terms of treatment, an epidural in late December 2015 gave the plaintiff significant relief but he continued to require physiotherapy at the Clinic into 2016. He still wears a lumbar support brace while driving. He does not take traditional painkilling medication, as it has been of little assistance to him, and now uses herbal medication and a gel.
214 Those medical examiners who have provided a view of his work capacity agree that the plaintiff is unable to work in his trade in refrigeration, given the heavy nature of the tasks involved. Professor Teddy thought it would be unlikely he would be able to return to his original heavy manual work. Mr Sui, Dr Kennedy and Mr O’Brien agreed with this view.
215 The plaintiff has been unable to get work in his chosen field since the transport accident, despite help for two years in this regard from the TAC.
216 While he is running a profitable business as a courier, working long hours and earning much more now than he did pre accident with Mech Air, the plaintiff can cope with the work as it is lighter but clearly has problems with long driving because of his back condition. Importantly he has lost his ability to do hands on work in a job he loved. However, although he would one day like to operate his own business, it seems regardless of any injury, it is a long-term plan because of the significant set up costs involved.
217 Although the plaintiff has travelled to India since the transport accident, these visits have been for family matters, not holidays. Obviously, while stranded there because of the COVID-19 virus, his social life has been restricted in any event.
218 Because of his back injury, the plaintiff has been unable to resume gym work which he enjoyed on a frequent basis before the transport accident. As a result, he has put on a considerable amount of weight.
219 There is also a Richards & Anor v Wylie[60] component in this case. Although it seems he is no longer suffering from PTSD following counselling by Dr Wright, the plaintiff continues to be frustrated and upset by the restrictions his back injury places on his day-to-day life as Dr Lewis recently described.
[60]Supra
220 The plaintiff has been diagnosed by Dr Weissman, Dr Lewis and Dr Firestone as suffering from an Adjustment Disorder. This psychiatric condition is moderate to mild. There has been no psychiatric treatment since 2016 and the plaintiff has not been treated with antidepressants, although Dr Firestone thought he might benefit from this medication in terms of his depression and pain.
221 Taking all the evidence into account, I am satisfied that the plaintiff continues to suffer lumbar pain and restrictions as a result of the transport accident. The consequences of his lumbar impairment are serious as stated in Humphries & Anor v Poljak.[61]
[61]Supra
222 There having been no sustained improvement in the plaintiff’s back condition and his ongoing issues in relation thereto, I am satisfied his lumbar impairment is long term.
223 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the transport accident.
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