Morelas v Transport Accident Commission
[2017] VCC 1589
•7 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01376
CI-16-00675
| AGRYIO ALKIS MORELAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 April 2017 | |
DATE OF JUDGMENT: | 7 December 2017 | |
CASE MAY BE CITED AS: | Morelas v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: [First revision 13 December 2017] | [2017] VCC 1589 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the cervical spine – whether the consequences the plaintiff complains of are attributable to the cervical spine alone – credit
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barlow v Hollis (2000) 30 MVR 441; Petkovski v Galletti (1994) 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr T C Chen | Nowicki Carbone |
| For the Defendant | Ms M Britbart QC with Ms D Manova | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injury suffered by him arising out of a transport accident which occurred on 8 October 2013 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the cervical spine, which includes vestibular dysfunction, including loss of balance.
5 Initially, the plaintiff’s application included claims for loss of body functions to the thoracic and lumbar spines and a severe long-term mental or severe long-term behavioural disturbance or disorder in the nature of an Adjustment Disorder with Depressed and Anxious Mood, and Post-Traumatic Anxiety. At the hearing, the plaintiff did not proceed with the claim under paragraph (c), nor the claims in respect to the thoracic and lumbar spines. Accordingly, in my reasons, I shall only consider whether the plaintiff satisfies the definition of “serious injury” under paragraph (a) in respect of the cervical spine.
6 The plaintiff seeks leave to issue proceedings at common law.
7 The plaintiff relied upon four affidavits, two sworn by him on 22 January 2016 and 6 March 2017, an affidavit of Mr George Megas, sworn 10 January 2017, a long-standing friend, and an affidavit of Mr Spiro Minas, sworn but undated, an employer and friend.
8 The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
Relevant legal principles
9 The Court must not give leave to issue proceedings at common law unless it is satisfied, on the balance of probabilities, that:
(a)the injury suffered by the plaintiff was as a result of the transport accident;
(b)the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
10 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. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said:
“… we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs (4)(d) when reliance is placed upon subs (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[2]
[1][1992] 2 VR 129
[2] (Supra) at 140
11 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, of itself, constitute, or be the producer of, the impairment of a body function.[3]
[3]Richards v Wylie (2000) 1 VR 79
12 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
13 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[5][1998] 1 VR 702
14 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category.[6]
[6](Supra) at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441, in particular, Chernov JA at paragraph [29]
15 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[7] where there is a pre-existing condition, an analysis has to be made to see whether the additional impairment resulting was “serious”.
[7](Supra) and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
16 Where the claimant has an injury with numerous consequences, he or she must establish, at the time of applying for leave, that the injury which has been caused by, or is the result of, the accident, is a serious injury.
17 In Peak Engineering & Anor v McKenzie,[8] the Court of Appeal said:
“… where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make finding about all of the pain and suffering consequences which are operative at the date of trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.
It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no disentangling is necessary.”
[8][2014] VSCA 67 at paragraphs [24] and [25]
18 In Poholke v Goldacres Trading Pty Ltd,[9] the court considered the approach to assessing the pain and suffering consequences of a back injury where there had been an earlier neck injury. The court observed that the fact the plaintiff experienced significant pain and discomfort from the first injury, did not diminish or devalue the degree of pain suffered as a result of the second injury. Moreover, while the earlier injury had significantly restricted the range and type of activities the plaintiff was able to engage in, such that his lifestyle, had already been severely affected, “what remained was important to him”[10] and “in that context, the further limitations, resulting from his back injury were not insubstantial”.[11]
[9][2016] VSCA 232
[10](Supra) at paragraph [111]
[11](Supra)
The issues
19 Counsel for the defendant informed the Court that the following issues were relevant to the plaintiff’s application:
·Whether the consequences of the cervical spine injury satisfy the test for seriousness under the Act.
·Whether the consequences the plaintiff complains of are attributable to the cervical spine alone, given the other injuries the plaintiff alleged he suffered in the transport accident, and his pre-existing conditions. The pre-existing injuries the plaintiff suffered included a longstanding left shoulder injury which was further exacerbated months prior to the subject transport accident, a low-back condition and a psychiatric condition. The plaintiff alleged that the latter two pre-existing conditions were aggravated by the transport accident, but were not part of his claim before me.
·The evidence of Mr Christopher Haw, hand and orthopaedic surgeon, is that the plaintiff’s ongoing issue is psychological in manner and not physical.[12]
·The credit of the plaintiff.
[12]Plaintiff’s Court Book (“PCB”) 85 AAAA
The Plaintiff’s evidence
20 The plaintiff is sixty-four years of age. He migrated from Greece to Australia in about 1970 at the age of seventeen, having completed the equivalent of Year 11 at school in Greece. In 1971, he started playing soccer, and in about 1973, he commenced coaching soccer. He married Vanna in 1977 and they adopted their daughter, Angel, when she was about eight or nine months’ old, in about 1999.
21 While coaching soccer, the plaintiff worked as a journalist for a Greek newspaper called the Hellenic Herald. He worked from the Port Melbourne office and his tasks included researching stories, conducting interviews and writing articles. He worked on and off for the newspaper for the next twenty-five years. He worked in Greek radio in various roles, including as a presenter and advertising manager. He worked as a journalist and ran his own Greek newspaper. He ran the Tsahpina Greek Newspaper for approximately thirteen years. This involved researching stories, conducting interviews, writing articles, managing staff and overseeing the production and distribution of the newspaper.
The Plaintiff’s pre-existing health issues
22 The plaintiff had health issues prior to the transport accident.
The first transport accident
23 In about 1986, the plaintiff was involved in a transport accident (“the first transport accident”). He suffered bilateral detached retinas as a result of the accident, and continues to consult an ophthalmologist in relation to this condition. In December 1997, as a result of his bilateral detached retinas, he received the Disability Support Pension. The plaintiff’s evidence is that he is still in receipt of the Disability Support Pension.
Anxiety and Depression
24 Since about the 1980s, the plaintiff’s evidence was that he had a history of Anxiety and Depression. He has received treatment from psychiatrists and psychologists from time to time, as well as from his general practitioner, Dr Jim Drakopoulos. He has been prescribed antidepressant and anxiety medication, including Cipramil, Xanax, Duchene and Escitalopram. At the time of the transport accident, he was managing his Anxiety and Depression, was not receiving regular psychological treatment and had ceased medication. This is confirmed by the records of the plaintiff’s general practitioner, Dr Drakopoulos.
Diabetes
25 In May 1995, the plaintiff was diagnosed with Type 2 diabetes, which he manages with medication.
Intermittent low-back pain
26 Prior to the transport accident, the plaintiff suffered from intermittent low-back pain. He received treatment over the years, including physiotherapy and pain medication. In April 2013, he suffered an increase in low-back pain as a result of moving a heavy meat spit. He wore a lumbar brace and used a walking stick to manage the condition. The plaintiff’s evidence was that he recovered well from the aggravation. He was managing his low-back pain at the time of the transport accident. He was able to perform household tasks, including cooking and cleaning, and returned to his hobbies of playing soccer and going fishing. While not part of this application, the plaintiff’s evidence was that his low-back pain was still present.
Left shoulder pain
27 From about 2005, the plaintiff has suffered pain in his left shoulder, for which he consulted an orthopaedic surgeon. His treatment comprised of hydrodilatation, cortisone injections, and medication, including Mobic, Voltaren and OxyContin. He continued to experience pain, stiffness and restriction of movement in his left shoulder.
28 In July 2013, the plaintiff fell on his left shoulder while playing soccer.
29 In September 2013, the plaintiff was referred to Associate Professor Marinis Pirpiris, orthopaedic surgeon, for treatment, which included injection into his shoulder with local anaesthetic and steroid.
30 In November 2013, Mr James Chui, orthopaedic surgeon, reviewed the plaintiff on behalf of Associate Professor Pirpiris and administered a cortisone and local anaesthetic injection. He reported that MRI scans confirmed a supraspinatus tear which is almost full thickness. Further injections were administered in January 2015 and February 2015.[13]
[13]Defendant’s Court Book (“DCB”) 62-63
31 The plaintiff has been advised that he may require surgery on his left shoulder. He continues to suffer from intermittent pain and restriction of movement in his left shoulder.
32 In February 2015, Mr Ash Chehata, a shoulder, elbow and wrist surgeon, described the pain in the plaintiff’s left shoulder as “severe”.[14] He said the plaintiff has impingement and a significant rotator cuff tear. The plaintiff reported taking Panadeine Forte for the pain.
[14]DCB 63
Prostate
33 In January 2014, the plaintiff underwent surgery to his prostate from which he has recovered. He suffered from high blood pressure and allergies prior to the transport accident.
Activities prior to the transport accident
Household tasks
34 The plaintiff’s evidence is that prior to the transport accident, he and his partner shared household tasks. He enjoyed cooking, in particular, barbecues. He would vacuum and wash his clothes after soccer and fishing. He enjoyed maintaining his garden and would perform such tasks as weeding, planting and watering.
Soccer
35 At the time of the accident, the plaintiff’s evidence was that his main hobby was playing soccer. He was a member of the Caulfield Cobras. He played every Saturday afternoon. He enjoyed the social aspects of soccer. He attended National Premier League games and would watch Port Melbourne and South Melbourne Soccer Club games about twice per week, on a Friday evening and on Saturdays or Sundays. He said soccer was his passion and hobby. He trained every Saturday from 3.00pm to 5.00pm.
Fishing
36 Depending on the weather, the plaintiff would go fishing with his friend on a regular basis. His pre-existing low-back injury did not interfere with his ability to participate in this hobby. He was able to manage the prolonged sitting involved in fishing.
Other activities
37 The plaintiff enjoyed spending time with his partner and daughter. He was active in the Greek Orthodox Church and attended church in Oakleigh on a weekly basis. He prepared a large meal, including a barbecue, for some elderly members of the Church community at least once a year. He enjoyed gardening.
Credit of the Plaintiff
38 Counsel for the defendant submitted that the plaintiff is an unreliable witness for the following reasons:
(a)the plaintiff’s evidence, on numerous occasions, contained internal inconsistencies and contained assertions that, when challenged with documentary evidence, or in some other way, he proffered explanations which were unconvincing;
(b)the plaintiff’s oral evidence was inconsistent with his affidavit evidence and, on occasions, he was prone to embellishment and exaggeration;
(c)there was a lack of evidence of current treating doctors;
(d)the plaintiff exaggerated his involvement in soccer; and
(e)the plaintiff’s evidence in relation to his low back was unreliable.
39 I will address each issue raised in turn.
(a) Lack of evidence from current treating doctors
40 The plaintiff relied upon evidence from Dr Drakopoulos, his general practitioner, and Dr Vinit Mathur, psychiatrist. The current reports of Dr Drakopoulos dated 24 August 2016 and 30 December 2016[15] confirm that the plaintiff reported the transport accident in October 2013, complaining of neck and upper back pain, and was diagnosed with an aggravation of pre-existing degenerative changes in the neck, low back and left shoulder.
[15]PCB 38A, 38AA and 39
41 In his most recent report, Dr Drakopoulos said that age-related degenerative changes are to be expected and there is nothing to suggest that the injuries are of a severe debilitating nature to render the plaintiff disabled. He suggested that the specialists be requested to provide their assessments.
42 The plaintiff’s evidence was that, over the last few months, he was being treated for his neck by his physiotherapist, Ms Rankin. Initially, he said he was seeing her once every two to three weeks. The only report of Ms Rankin contained in the Defendant’s Court Book is dated 28 September 2016, which states that the plaintiff is now suffering low-back pain following the 2013 transport accident, for which she had currently treated him on four occasions. Further, in 2014, she treated the plaintiff for his neck following the transport accident in 2013. Ms Rankin does not refer to any treatment after 2014 for the plaintiff’s neck.[16] However, Dr Drakopoulos’ medical records were before the Court. On 19 January 2017, the plaintiff reported to Dr Drakopoulos that he attended Ms Rankin for treatment which assisted his neck and balance.[17]
[16]DCB 30
[17]Clinical notes of Dr Drakopoulos, page 142
43 The plaintiff’s evidence is that, in September 2016, he consulted Associate Professor Pirpiris, orthopaedic surgeon, for either his neck or back; he could not remember. In August and September 2016, Dr Drakopoulos’ records confirm that he referred, and the plaintiff was seen by Associate Professor Pirpiris for right foot, leg and hip pain. There is no report from Associate Professor Pirpiris other than a report dated 24 September 2013 to the plaintiff’s general practitioner, which is contained in the Defendant’s Court Book and relates to the plaintiff’s left shoulder, which is not part of the plaintiff’s current claim.[18] However, Dr Drakopoulos’ medical records confirm that in August 2016, he referred the plaintiff to Associate Professor Pirpiris in relation to the plaintiff’s complaint of right foot pain: “pain moves upward to leg and calf”.[19]
[18]DCB 59-60
[19]Clinical notes of Dr Jim Drakopoulos, page 138
44 In the Plaintiff’s Court Book, the plaintiff included two reports dated 16 September and 5 November 2014 from Associate Professor John Drago, neurologist, and a letter addressed to the Transport Accident Commission requesting permission to perform MRI scans of the brain, cervical spine and lumbar spine.[20] The main treatment at that time was for the plaintiff’s headaches, which were treated with medication.
[20]PCB 45A, 45B-45BBB
45 In November 2014, Associate Professor Drago reported on the MRI scans. The brain MRI scan was normal and the cervical MRI scan showed some foraminal stenosis with potential right-sided C6 nerve root compression. He reassured the plaintiff there was no surgery required.
46 The plaintiff’s evidence was that he sees Associate Professor Drago on a monthly basis and he is having extensive investigations for his loss of balance. The plaintiff said Associate Professor Drago could not find a basis for the balance problems. There is no current medical report from Associate Professor Drago addressing this issue.
47 I accept that there is a lack of evidence of current treating doctors relating to the cervical spine condition. However, this is not fatal to the plaintiff’s claim as there are medico-legal reports that address the plaintiff’s cervical spine injury which I can take into account.
48 I note that the plaintiff also relied on a report from the psychiatrist, Dr Mathur;[21] however, the psychiatric injury is now not part of the plaintiff’s claim.
[21]PCB 41-45
(b) The Plaintiff’s involvement in soccer
49 It was accepted between the parties that the plaintiff had been interested and involved in soccer most of his life. However, counsel for the defendant submitted that the plaintiff exaggerated his ongoing involvement in soccer at the time of the transport accident.
50 In his first affidavit, the plaintiff stated:
“At the time of the subject accident, my main hobby was playing soccer. I was a member of the Caulfield Cobras soccer team and I played in their Seniors league which is a league for players over 45 years of age … .”[22]
[22]PCB 7
51 Further, at paragraph 28 of his affidavit, the plaintiff said:
“Prior to my accident I lived and breathed soccer. It was my passion and my hobby. I played soccer weekly at the time of the accident. I also continued to train every Saturday from 3pm-5pm nearly every Saturday with ex professional soccer players who mostly used to play in the national league … .”[23]
[23]PCB 7
52 And, at paragraph 62:
“… I really enjoyed playing soccer on a regular basis prior to the subject accident. … .”[24]
[24]PCB 13
53 I take the view that those paragraphs in his affidavit suggest that the plaintiff was a member of the Caulfield Cobras soccer team and in a league, which suggests some sort of competition. Paragraphs 28 and 62 suggest that his involvement in soccer was ongoing and active, and that he played consistently prior to the transport accident in 2013.
54 The plaintiff told a number of the doctors about his involvement in soccer:
(a) the plaintiff told Mr David Brownbill, neurosurgeon, that he was “playing soccer until the time of the accident but not since”;[25]
[25]PCB 53
(b) the plaintiff told Mr Brendan Hayman, psychiatrist, that he had “continued to play soccer until the time of the accident in the Master’s League, which he greatly enjoyed”;[26]
(c) the plaintiff told Mr Haw, hand and orthopaedic surgeon, that he “represented Victoria against Darwin in the over 50s and … they won the cup and this was in August 2013, some 3 months before the [transport] accident …”.[27]
[26]PCB 69
[27]PCB 85AA
55 The evidence was that, at the age of nineteen, the plaintiff played about a year of professional soccer. He moved to a smaller team called Garden City and played with that team in his twenties and thirties for about seven or eight years. The plaintiff’s evidence was that, since the 1980s when he finished up with Garden City, he played with the Caulfield Cobras. The evidence is that the plaintiff was a member of that Club for about eight months in 2010.[28] Further, the plaintiff’s evidence is that for a period of five to six years, he did not play soccer at all because there were issues with his daughter.[29] The plaintiff agreed that while there was approximately ten years when he was not involved with a soccer club, he was training with his friends, kicking a soccer ball now and then every week.[30] He agreed that in 2010, he had an Achilles heel, which resulted in pain, and for a period of four to five months, he could not play soccer. In June 2010, the general practitioner’s notes indicate that he was unable to play soccer for approximately twelve months because of his left leg.[31] The plaintiff was not able to name any other club that he had been associated with.[32]
[28]DCB 44
[29]T16, L24-26
[30]T17
[31]Clinical notes of Dr Jim Drakopoulos, page 80
[32]T13, L19-24
56 In late 2011 or early 2012, the plaintiff described a game in which he represented Melbourne against Darwin, but agreed that he did not participate in regular games.[33] He said that he got together with others on Saturdays to play socially, there was no competition and they played for the love of the sport. He was the oldest player in the group.[34]
[33]T13, L27-28
[34]T21, L9-25
57 The evidence is that there were periods where personal reasons or injuries meant the plaintiff was unable to play soccer. The plaintiff’s evidence was that he played soccer with a group of friends in Elwood three months before the transport accident. The plaintiff gave evidence that they were sessions of kicking the ball around. He fell on his shoulder on one such occasion.[35] The plaintiff’s evidence was that, after the shoulder injury, he returned to playing soccer for about three to four months prior to the transport accident.[36] He then qualified that, and said he only played soccer two or three times before the transport accident.[37]
[35]T24, L1-6
[36]T28, L2-3
[37]T29, L6-7
58 I accept that the plaintiff was passionate about soccer. He played the sport when he was young. He has not played the game in a competition for many years, other than when he played one game in Darwin in 2011 or 2012. Prior to the transport accident, the plaintiff played soccer with friends, kicking the ball on two or three occasions. He was limited in playing soccer with his friends because of injuries to his left shoulder, his ankle, heel and left leg, or for personal reasons unrelated to the transport accident.
59 On the balance of the evidence, I accept the plaintiff exaggerated his involvement in playing soccer at the time of the transport accident.
(c) The Plaintiff’s inconsistent evidence
60 Counsel for the defendant submitted that, on numerous occasions, the plaintiff gave evidence that contained inconsistencies or was prone to exaggeration, particularly in respect of his evidence as to his left shoulder injury, low-back injury, work, loss of consciousness and headaches.
(i) the Plaintiff’s left shoulder injury
61 In about 2005, the plaintiff injured his left shoulder for the first time.[38] In July 2013, the plaintiff injured his left shoulder while playing soccer. He was referred to Associate Professor Pirpiris, orthopaedic surgeon, who injected his shoulder with a local anaesthetic and steroid. The plaintiff agreed that he was prescribed medication of Tramal and OxyContin in about July 2013.
[38]PCB 6 at paragraph [20]
62 In September 2013, the plaintiff was reporting an inability to sleep on his shoulder, he woke due to the pain and was unable to perform activities.
63 On 7 October 2013, the day prior to the transport accident, an MRI scan was performed. The MRI scan revealed a full-thickness tear of the supraspinatus tendon and a tear of the biceps muscle.[39]
[39]DCB 39
64 The plaintiff said the last time he recalled a problem with his left shoulder was about the time of the transport accident in October 2013.[40] However, the medical evidence is that the plaintiff received significant treatment for his left shoulder following the transport accident.
[40]T30, L11-14
65 The plaintiff was referred to Mr Chiu, orthopaedic surgeon, in November 2013. Mr Chiu gave the plaintiff another cortisone and local anaesthetic injection and recommended an arthroscopic cuff repair. The plaintiff elected to proceed with conservative management as he was awaiting surgery for his prostate. Between the date of the transport accident and the end of 2013, the plaintiff reported shoulder pain to his general practitioner.[41] The plaintiff sought treatment from his general practitioner for his left shoulder in April 2014,[42] in December 2014, January 2015 and February 2015.[43] The evidence is that the plaintiff received five injections into his left shoulder from Mr Chiu in November 2013, April 2014, December 2014 and January 2015.[44]
[41]Clinical notes of Dr Jim Drakopoulos, pages 101-102, 104
[42]Clinical notes from Dr Jim Drakopoulos, page 113
[43]Clinical notes from Dr Jim Drakopoulos, pages 112-122
[44]Clinical notes from Dr Jim Drakopoulos, pages 104, 113, 121 and 122
66 In February 2015, the plaintiff was referred to Mr Chehata, shoulder, elbow and wrist surgeon, in respect to his severe left shoulder pain, for which he was taking Panadeine Forte.[45] Further, in the plaintiff’s first affidavit, the plaintiff deposed that in January 2016, he continued to suffer from intermittent pain and restriction of movement in his left shoulder.[46] In cross examination, he agreed that he has ongoing problems with his left shoulder,[47] he then said his shoulder has been perfect for the last twelve months.[48]
[45]PCB 63
[46]Paragraph 20
[47]T31, L12-14
[48]T31, L23-27
67 Counsel for the defendant submitted that, at the time of the transport accident, given the restrictions that the plaintiff was demonstrating, the range of treatment and the complaints to medical practitioners, the plaintiff’s shoulder must have had an ongoing impact on the level of activity that the plaintiff could engage in at the time of the transport accident.
68 I accept that, at the time of the transport accident and subsequent to the transport accident, the plaintiff was suffering from a left shoulder injury, which required ongoing medical treatment from orthopaedic surgeons who administered injections, suggested surgery and prescribed medication. I accept the left shoulder would have restricted his involvement in physical activities. I also accept that the plaintiff was inconsistent in what he said about the extent of the injury compared with his evidence in his affidavits and what he reported to the medical witnesses who were treating him at the relevant time.
(ii) the Plaintiff’s low-back injury
69 Counsel for the defendant submitted that the plaintiff tried to minimise the ongoing impact of his low-back pain. In re-examination, the plaintiff said that he could not fish or play soccer because of his neck pain.[49]
[49]T90
70 In his first affidavit, he said the low-back injury did not interfere with his ability to participate in his hobbies and enjoyment of life.[50] He also swore that prior to the transport accident, he was managing his low-back injury well. However, since the transport accident, his standing, walking and sitting tolerances had been reduced. Further, he now finds it more difficult to twist, bend, lift heavy items and move quickly as a result of the increase in his low-back pain and symptoms.[51]
[50]PCB 11 at paragraph [53]
[51]PCB 11 at paragraph [53]
71 In paragraph 61 of his first affidavit, the plaintiff deposed that driving aggravates the symptoms in his neck, low back and right leg. Further, he said that, as a result of his low-back injury, he finds it difficult to run and kick the ball, sit for long periods of time, go fishing (that is, lifting the anchor out of the boat and the prolonged sitting in the boat), attend the movies with his daughter, attend the races, meet friends for coffee and attend church. He now only attends soccer games once a fortnight or every three weeks. At times during cross-examination, he agreed that the above-mentioned consequences were due to his low-back condition, his neck condition, or both.
72 Counsel for the plaintiff accepted that the plaintiff’s evidence was somewhat contradictory and inconsistent, and with a degree of confusion, for example what the plaintiff said as to when his balance problems commenced, and the restrictions upon playing soccer, whether they were as a result of the back, neck, or a combination of both. In re-examination, he suggested the consequences were due to his neck injury.
73 I take the view that, on occasions, the plaintiff gave inconsistent evidence in cross-examination and re-examination to what he said in his affidavits regarding his low-back injury.
(iii) work
74 Counsel for the defendant submitted that the plaintiff was also inconsistent in what he said about the effects of his injuries on his work.
75 The plaintiff deposed that he was working in a restaurant on a casual basis at the time of the transport accident. He had to stop work following the accident as a result of his injuries. He returned to casual work in November 2014 and found it difficult to manage work with his accident-related injuries. He gave examples of difficulties with prolonged standing due to low-back and right leg symptoms. He found that tilting his head downwards when preparing and cooking meals caused his neck symptoms to increase, and he was required to take regular breaks and medication to manage his neck pain.
76 In relation to work, in his first affidavit,[52] the plaintiff deposed that he returned to work and commenced working twice a week for about three hours per shift at George’s Greek Tavern. He performed a mix of cooking and concierge tasks. He deposed he had difficulty managing his work with his accident-related injuries. For example he found prolonged standing caused his low-back and right leg symptoms to increase. He ceased working because he was struggling to sleep after shifts due to the increased pain he was experiencing. In his second affidavit, he deposed that he has not been able to return to casual work. The shifts were too demanding and frequently caused an aggravation of his neck and back pain.[53]
[52]PCB 16-17 at paragraph [77]
[53]PCB 23 at paragraph [8]
77 In June 2014, the plaintiff reported to Mr Hayman that he had recommenced work for three hours on a Friday and Saturday evening at a Greek tavern and was enjoying this. In September 2014, he told Associate Professor Drago that he was working as a chef for three to six hours a week in a friend’s restaurant.[54] In October 2014, he reported to Dr Andras Perenyi that he was planning to start work again in November in a Greek restaurant as a chef.[55]
[54]PCB 45B
[55]PCB 34
78 In cross-examination, the plaintiff’s evidence was that he had been working for two different owners of the tavern,[56] that his job was mainly managing staff, collecting the money, looking after the customers, and cooking the “special of the day”.[57]
[56]T71, L15-18
[57]T71, L1-18
79 The plaintiff agreed that in November and December 2013, he had significant problems with his left shoulder which interfered with his ability to carry heavy plates.[58] The plaintiff’s evidence was that he worked for Mr Spiro Minas, who sold the business, and he worked for the new owner, but left.
[58]T70, L16-21
80 Mr Minas swore an affidavit stating that the plaintiff worked for him when he was busy, it was not on a permanent basis, but he worked for about six weeks. The plaintiff was limited in the types of jobs he could do because of his neck and back pain. Mr Minas stated that eventually he stopped calling the plaintiff to offer him shifts because he knew that he would say no because of his back and neck pain.[59] This is not consistent with the plaintiff’s evidence.
[59]PCB 30
81 Taking into account the evidence, I accept that the plaintiff’s evidence was confused and contradictory in respect of work and the effect of his injuries on his work. Further, I accept that the work he performed was casual and for a limited time.
(iv) loss of consciousness
82 Counsel for the defendant submitted that the plaintiff gave inconsistent evidence as to whether he suffered a loss of consciousness at the time of the transport accident.
83 The plaintiff denied having any head injury in the transport accident. In cross-examination, he said he hit his throat on the steering wheel. He remembered this because he was not able to talk for about two weeks.[60] This was the first mention of such an injury. The plaintiff’s affidavit is silent in relation to him hitting his throat or his head, or about any loss of consciousness.
[60]T80, L15-21
84 In February 2017, Dr Timothy Entwisle, consultant psychiatrist, noted there was no head strike or loss of consciousness.
85 In June 2014, Mr John Redhead, an ear, nose and throat surgeon, obtained a history of the plaintiff sustaining a head injury when his head struck the steering wheel, and he believes that he lost consciousness for several seconds.[61] Associate Professor Drago obtained a similar history in September 2014. The plaintiff’s explanation was that both doctors misunderstood the difference between his head and his throat.[62] The submission of the defendant was that the plaintiff’s explanations are unconvincing and point to an issue with his reliability as a witness. Further, the opinions of Mr Redhead and Associate Professor Drago are affected in a critical way in relation to the claimed Vestibular Disorder.
[61]PCB 59
[62]T114, L23-25
86 The medical records of Dr Drakopoulos, who examined the plaintiff on 11 October 2013 following the transport accident, make no reference to the plaintiff hitting his head or loss of consciousness in the transport accident.
87 I accept that the plaintiff’s evidence as to his loss of consciousness, which he reported to Mr Redhead and Associate Professor Drago, raises concerns of inconsistencies, confusion and exaggeration.
(v) headaches
88 Counsel for the defendant submitted that the plaintiff’s evidence about headaches was inconsistent.
89 In his most recent affidavit, the plaintiff deposed that he suffers headaches a few times a week.[63] In cross-examination, the plaintiff said he suffers headaches maybe once a month and that he takes tablets provided by Associate Professor Drago, which assist with the pain.[64]
[63]PCB 22
[64]T43, L7-9
90 In re-examination, the plaintiff said he suffers headaches once a week or once a fortnight.[65] The most up-to-date medical reports of Associate Professor Drago relate to an attendance in September 2014. Associate Professor Drago said the plaintiff reported intermittent headaches for which he prescribed Metoprolol and Naramig. Dr Drakopoulos’ medical records were before the Court. These records confirm that in August 2016, Dr Drakopoulos prescribed Naramig when the plaintiff last reported headaches. The plaintiff reported Depression and back and neck pain. Dr Drakopoulos diagnosed muscle pain and Post-Traumatic Syndrome, treated by a psychiatrist.
[65]T90, L25-26
91 I accept the plaintiff’s evidence in relation to the headaches he suffers was inconsistent.
(vi) Other examples
92 Counsel for the defendant submitted that there were other examples of the plaintiff’s unreliability. For example his attendance at church. In his affidavit, he said he attends church regularly. In cross-examination, the plaintiff said he had not been to church for two years, with the exception of about a month ago when he attended a funeral.[66]
[66]T52, L11-16
93 Second, as to payment for his work at the newspaper and radio, initially, in cross-examination, the plaintiff said he was paid for the work; however, when asked whether he declared such income to the Australian Taxation Office, he said that he was not paid and it was a “contra deal”.[67] That is, he did the radio program, and the same person for whom he was doing the radio program did the delivery and the printing in return.
[67]T62, L21
94 Counsel for the plaintiff acknowledged that there were inconsistencies and contradictions in the plaintiff’s evidence but many were against his interest. He accepted some were inexplicable, in particular, what the plaintiff said about his balance problem – namely, it had been an issue for twelve months, yet he was consulting Mr Redhead for three years in respect to that issue. I was referred to his acknowledgement that he did not hit his head but his throat. He accepted that he suffered hearing loss before the transport accident.
Conclusion as to credit
95 I accept that the plaintiff made some concessions, for example his headaches had improved with medication, his sleep has improved in the last twelve months and that there was some improvement in his neck, but it is now worse. I accept the plaintiff’s evidence was contradictory and inconsistent with a degree of confusion in respect to his left shoulder and low-back injury, the effect of the injuries on his work, loss of consciousness at the time of the transport accident, frequency of headaches resulting from his injuries, whether he was paid for his work, and attendance at church at the time, and following the transport accident. I take the view that the plaintiff exaggerated his playing of soccer at the time of the transport accident.
96 I note that the plaintiff was under video surveillance. The defendant disclosed in its court book that video surveillance of the plaintiff was brought into existence for the dominant purpose of use in the litigation and in respect of which privilege was not waived. No video surveillance was shown, nor was the absence explained. I can infer that the surveillance did not assist the defendant.
97 In considering the credit of the plaintiff, I must consider the evidence as a whole. Overall, I accept the plaintiff was prone to exaggeration in relation to his playing of soccer, the extent of his injuries and work. I accept counsel for the defendant’s submission that the plaintiff is an unreliable witness. As a result, I will be particularly influenced by what the plaintiff was reporting to medical witnesses at any particular time. I will also be influenced by the evidence of medical witnesses and radiological investigations.
Analysis of the evidence
Neck injury
98 It was not in dispute that the plaintiff suffered an injury to his neck at the time of the transport accident. The up-to-date evidence of the plaintiff’s neck injury was expressed as follows:
The medical evidence
99 In December 2016, Dr Drakopoulos, the general practitioner, said that as a result of the transport accident, the plaintiff suffered an aggravation of pre-existing spine and joint degenerative changes at C3-4 and C5-6 levels. He recorded a range of additional symptoms: visual (blurry vision), hearing (right ear balance), neurological (balance, muscular atrophy, numbness, weakness), hair thinning on legs, and right foot pain (which he attributes to applying the brake).[68] Dr Drakopoulos said he was unable to offer an explanation as to the probable causes of the additional symptoms in relation to the transport accident. He said the injuries, namely the aggravation of the pre-existing spine and joint degenerative changes, are consistent with the transport accident, and his injuries or aggravated pre-existing conditions are a contributing factor to some of the symptoms reported, namely, visual, balance, hearing and neurological. He said the plaintiff suffered age-related degenerative changes. He said there was nothing in the injuries that are of a severe debilitating nature to render the plaintiff a disabled person.
[68]PCB 39
100 While not current, in September 2014, Associate Professor Drago, neurologist, provided a neurological assessment. The plaintiff reported loss of consciousness briefly when his head went into flexion and hard extension, and his occipital region hit the headrest. Two days later, he developed severe neck pain which restricted movement to the right, and headaches which were bi-temporal and associated with visual flashing lights. The plaintiff reported restricted neck movements to the right, with pain, exacerbation of neck pain and back pain, and intermittent severe headaches that he treats with OxyContin or Panadeine Forte. It was Associate Professor Drago’s opinion that there had been some exacerbation of an underlying degenerative disease in the neck and lumbosacral spine. He said he treated the plaintiff’s intermittent headaches with visual disturbance with medication and that they were post-traumatic headaches. He referred the plaintiff for an MRI scan of the brain, which was normal. The cervical MRI scan showed some neuroforaminal stenosis, with potential right-sided C6 nerve root compression. He said there was some minor degenerative lumbosacral disease but no evidence of high-grade canal stenosis or nerve root compression.[69]
[69]PCB 45A
101 In June 2014 and September 2016, the plaintiff was examined by Mr Brownbill.
102 In September 2016, the plaintiff reported to Mr Brownbill neck pain present at the time, with fluctuations. The neck pain was associated with restriction of movements, particularly when driving, and increased with physical activity. Mr Brownbill noted that the active cervical spine movements were full in flexion, extension and lateral rotation, and half of full in lateral flexion. He considered that, from a neurosurgical point of view, the plaintiff’s condition has stabilised and is unchanged from that at the previous visit.[70] He accepted that it was more probable than not that the plaintiff sustained an aggravation of the cervical and lumbar degenerative changes as a direct result of the transport accident.[71]
[70]PCB 56
[71]PCB 50
103 In March 2017, Mr Brownbill was provided with a report from Mr Michael Dooley, orthopaedic surgeon, dated 21 February 2017. He did not consider there was any indication to modify the opinions expressed in his earlier reports.[72]
[72]PCB 58AA
104 On 18 June 2014 and 19 October 2016, Mr Redhead examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported sustaining a head injury when his head struck the steering wheel and he believed that he had lost consciousness for several seconds.[73] In June 2014, Mr Redhead said the plaintiff’s hearing loss remains minor and that it was more probable than not that his vestibular impairment is a direct result of the transport accident, that it is most likely a result of either the head injury or injury to the cervical spine, both of which can cause significant vestibular impairment. He said the plaintiff’s hearing loss may be the result of his head injury, or it may predate the transport accident. He said the vestibular impairment should improve with physiotherapy.[74]
[73]PCB 59
[74]PCB 60
105 In October 2016, Mr Redhead said the plaintiff was currently undergoing physiotherapy twice weekly, which had produced some improvement in his balance.[75] He recommended continuing physiotherapy with specific attention to the vestibular system. He reiterated his earlier opinion. A hearing test was undertaken which confirmed loss of hearing.
[75]PCB 64-65
106 In December 2016, Mr Haw, a hand and orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. He diagnosed a cervical spine injury causing vestibular problems, as well as a transient problem relating to the right leg, which had resolved. He said the plaintiff’s Anxiety, Depression and lack of motivation had failed to resolve. He did not believe the plaintiff would significantly deteriorate with time. It was his view the plaintiff did not in any way aggravate the degenerative problems that are present in his lumbar spine, nor did he aggravate the cervical or thoracic degenerative changes. [76] He noted that the plaintiff’s Anxiety, Depression and lack of motivation associated with his psychological condition had not resolved. In February 2017, he provided an addendum to his previous report. It is now his opinion that there is significant likelihood that the vestibular dysfunction is related to the transport accident; however, he noted that he was not an expert in this field and that an ear, nose and throat surgeon should be requested to assess the problem. He said the ongoing problems in the cervical spine were related to the transport accident, but the lumbar spine problem was unrelated.[77]
[76]PCB 85AAAA – 85AAAAA
[77]PCB 85B
107 In February and April 2017, Mr Dooley provided medical reports at the request of the defendant. It was Mr Dooley’s opinion that the plaintiff suffered a soft-tissue injury to the cervical spine region and to the lumbar spine region.[78] He believed the injuries would have involved some musculoligamentous damage and some aggravation of underlying degenerative disc disease. He said a CT scan one month post the accident reported an avulsion fragment at the C2 level. It was well corticated, which indicates it was old and definitely preceded the transport accident. It represented previous trauma. It was his opinion that the plaintiff had a long history in relation to lumbar spine pain.[79] To his knowledge, the plaintiff did not complain of cervical spine pain prior to the transport accident. He accepted that his cervical spine complaints could be attributed to the transport accident. He formed the overall view that, to a degree, the constancy and intensity of the plaintiff’s ongoing pain is greater than one would expect to see for his organic condition. He did not believe one could explain symptoms such as poor balance or a loss of balance with walking quickly on the basis of the soft-tissue spinal injury the plaintiff sustained. He believed that the plaintiff had a psychological reaction to his situation and that this reaction influences his ongoing symptoms.[80]
[78]DCB 12
[79]DCB 12
[80]DCB 14
108 In his report of April 2017, Mr Dooley was provided with documentation, which he read, and the clinical records from the general practitioner. He remained of the view that one cannot explain symptoms such as loss of balance on the basis of organic soft-tissue spinal injury alone.[81] He reiterated that the plaintiff had a psychological reaction to his situation which influences the constancy and intensity of his ongoing pain.[82]
[81]DCB 17
[82]DCB 17
109 In February 2017, Mr Robin Hooper, an ear, nose and throat surgeon, examined the plaintiff at the request of the defendant. The plaintiff reported headaches and dizziness which he described as ataxia to the right, which persists. He diagnosed a sensorinearal hearing loss (degenerative). He said the plaintiff had a 0.8 per cent hearing loss, after making a correction for age. The hearing loss cannot be related to his accident as he did not sustain a head injury or fracture of the temporal bones. The plaintiff’s description of tinnitus “does not suggest an ear dysfunction”.[83] He said there were no signs of vestibular dysfunction on the day of evaluation and the plaintiff reported being able to perform the functions of daily living. He said the plaintiff’s mild age-related symmetrical high frequency hearing loss is not related to the transport accident. The symptoms of dizziness do not suggest vestibular dysfunction. He said the plaintiff’s findings of difficulties hearing the television and “talking loud” is consistent with age-related hearing loss.
[83]Supra
110 Based on the current medical evidence, I accept the plaintiff suffered an injury to his cervical spine in the form of an aggravation of pre-existing asymptomatic degenerative changes.
Petkovski v Galletti[84]
[84][1994] 1 VR 436 at 443
111 The evidence is that prior to the transport accident the plaintiff suffered no symptoms or impairment to the cervical spine. The medical evidence is that the impairment of the cervical spine is attributable to the transport accident. Accordingly, I accept that the consequences the plaintiff described in relation to the cervical spine are as a result of the transport accident.
Physical/psychological
112 Counsel for the defendant submitted that the evidence of Mr Haw is that the plaintiff’s ongoing issue is psychological in manner and not physical. Mr Dooley said one could not explain symptoms such as poor balance and loss of balance with walking quickly, on the basis of the soft-tissue spinal injury the plaintiff sustained. He believed that the plaintiff had a psychological reaction to his suspicion and that his reaction influences his ongoing symptoms.
113 In Meadows v Lichmore Pty Ltd,[85] Maxwell P set out the two-step manner in which I ought to approach the task in this type of case:
“…The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that is affirmative – and, of course, if the pain and suffering consequences satisfy the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not- or cannot be – answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[85][2013] VSCA 201 at paragraphs [21]-[22]
114 It was not an issue that the plaintiff had a pre-existing history of Anxiety and Depression since the 1980s. He had been prescribed medication and received treatment from psychiatrists, psychologists and his general practitioner, Dr Drakopoulos. At the time of the transport accident, the plaintiff was managing his Anxiety and Depression. He was not receiving regular treatment and had ceased medication. The evidence is that subsequent to the transport accident, the plaintiff has received psychiatric treatment and medication. Counsel for the plaintiff accepted that the plaintiff has a psychiatric condition for which he receives treatment and medication, but submitted the plaintiff’s cervical spine condition is organically based and is serious.
115 I accept the medical evidence is that the plaintiff has undergone treatment for an organic condition in relation to his cervical spine, including medication and physiotherapy. I refer to the evidence of Dr Drakopoulos, Mr Brownbill and Mr Redhead. Taking into account all of the evidence, I am satisfied that the plaintiff’s cervical spine injury has an organic basis.
Peak Engineering & Anor v McKenzie[86]
[86](Supra)
116 Counsel for the defendant submitted that the plaintiff must identify the consequences related to the cervical spine and specifically exclude any consequences referable to any other injury or condition.
117 In Peak Engineering & Anor v McKenzie,[87] Maxwell P described the difficulty faced where a separate injury is also producing pain and suffering consequences to the claimant, as well as the relevant injury. In such circumstances:
“The court must decide whether the consequences of the original injury are ‘more than significant or marked, and…at least very considerable’. For that purpose, it is necessary – so far as the evidence permits – to identify the consequences referable to the subsequent injury.”
[87](Supra)
118 The president found that the judge was:
(a) bound to identify and exclude the continuing consequences for the plaintiff of the unrelated injury; and
(b) when the consequences properly referable to the relevant injury were identified, identifying them as serious.[88]
[88](Supra) at paragraph [2]
119 In this case, I must determine whether the consequences to the cervical spine that result from the transport accident are, in comparison with other cases, “fairly described at least as ‘very considerable’” and certainly more than ‘significant’ or ‘marked’”.[89] For this purpose, it is necessary, so far as the evidence permits, to identify the consequences properly referable to the cervical spine injury and to exclude the continuing consequences referable to any other body part. When the consequences properly referable to the relevant injury are identifiable, in this case the cervical spine injury, then I must determine whether they amount to serious.
[89]Humphries & Anor v Poljak (supra) at paragraph [40]
120 The plaintiff’s evidence was that, as a result of the transport accident, he sustained injuries to his cervical spine, which included vestibular dysfunction and loss of balance, in the nature of an aggravation injury, an aggravation to his lumbar and thoracic spines, and an aggravation of his pre-existing mental condition in the nature of stress, Anxiety and Depression.
121 In this case, the injuries occurred at the same time; that is, aggravation to the low-back condition, the psychiatric condition and the cervical spine injury. In addition, the plaintiff suffered a shoulder injury immediately prior to the transport accident. The difficulty with this particular application is that it was prepared at the time when the plaintiff was pursuing an application for serious injury based on a loss of function to the neck, the lumbar and thoracic spine and a psychiatric condition.
122 The medical evidence was that prior to the transport accident, the plaintiff suffered a left shoulder injury while playing soccer. At the time of the transport accident, he was receiving treatment by way of cortisone and local anaesthetic, and an arthroscopic cuff repair and biceps tenotomy was being recommended.[90]
[90]DCB 61
123 In February 2015, the plaintiff was receiving treatment for his left shoulder from Mr Chehata and was reporting severe left shoulder pain for which he was being prescribed Panadeine Forte, and a further cortisone injection was planned.
124 The evidence is that prior to the transport accident, the plaintiff suffered back pain for which he received treatment, and was prescribed Tramal capsules. The plaintiff wore a lumbar brace and was walking with a stick. The plaintiff’s evidence was that he suffered an aggravation of his back injury in the transport accident, which he reported to the medical witnesses. Further, as a result of the transport accident, the plaintiff was receiving treatment for his mental health condition from his general practitioner and psychiatrist.
Consequences
125 Whether an injury is a “serious injury” within the meaning of the definition in the Act depends on the consequences of the injury in respect to pain and suffering and economic loss at the time of the application. I will now consider the consequences upon which the plaintiff relies.
126 As Maxwell P stated in Peak Engineering:[91]
“In a case of this kind where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will be ordinarily necessary to make findings about all of the pain and suffering consequences which are operative at the date of trial. This would seem to be an essential pre-condition of the task of deciding which of the pain and suffering consequences are attributable to which injury.”
[91](Supra) at paragraph [24]
127 In the present case, I am required to analyse all the evidence, so far as possible, assessing the extent to which it is neck pain rather than back pain, psychiatric injury, and left shoulder pain, which causes the reduction in various activities. Maxwell P also noted in Peak Engineering that it was possible to imagine a case where the consequences of the other injuries are so clearly separate and distinct from the consequences of the cervical spine injury that no disentangling is necessary. A number of consequences in this application fall largely into this category.
Pain and medication
128 In the plaintiff’s most recent affidavit, he said the neck pain remains. He suffers neck pain every day, especially on the right side. The pain is nearly constant and his neck is achy and stiff, particularly in the mornings when he first wakes. The pain tends to worsen if he has to hold his head in a fixed position, for example when using a computer. The plaintiff said he manages his neck pain through frequent massaging of his neck and by having a warm shower in the morning. If he is having a particularly bad day, he lies down and rests. The plaintiff said the pain starts from the right-hand side of his neck and goes down the right-hand side of his body to the right leg. The pain limits his ability to use a computer for any longer than half an hour. He needs to take breaks.[92]
[92]PCB 22
129 The plaintiff reported to Mr Brownbill that he has neck pain present all the time with fluctuations. It is associated with restriction of movement, particularly when he is driving. The neck pain increases with physical activity. Mr Brownbill accepted the plaintiff sustained an aggravation of previously asymptomatic degenerative changes giving rise to the onset of pain. The plaintiff reported to Mr Dooley that he noted ongoing neck pain. Mr Dooley formed the view that, to a degree, the constancy and intensity of his ongoing pain are greater than one would expect to see for his organic condition.
130 The plaintiff reported to Mr Haw that he still experiences some pain in the neck.[93]
[93]PCB 85AA
131 I accept that the plaintiff suffers pain in the neck; however, I will be informed by the medication the plaintiff takes and his current treatment.
Medication/treatment
132 The general practitioner’s records confirm that the plaintiff regularly consulted his general practitioner. Between 15 February 2016 and 28 February 2017, the plaintiff consulted his general practitioner on twenty-one occasions, of which only three attendances related to his neck pain and headaches.[94] On two occasions, he was prescribed Naramig for headaches, and on the third occasion, physiotherapy was recommended. The records of the general practitioner confirm that in the above-mentioned period, Panadeine Forte was prescribed on one occasion in relation to a Transport Accident Commission attendance, but there was no record of whether the attendance related to complaints of neck pain.
[94]Clinical Notes of Dr Jim Drakopoulos: Where the plaintiff seeks treatment for both a transport-accident-related injury and a condition not relating to the transport accident, the medical records indicate two separate consultations on the same day, with one consultation having “Reason for consultation” marked as “TAC”
133 The plaintiff’s evidence was that he was taking Panadeine Forte and if he is having a particularly bad day, he requires it two to three times per week at night.[95] If it is a particularly bad day, he lies down and rests, and takes extra doses of Panadeine Forte.
[95]T88, L26-30
134 The plaintiff’s evidence was that he takes Panadeine Forte after each soccer coaching session for his neck and back.[96] The plaintiff’s evidence was that he recently started coaching a youth soccer side twice a week for one-hour sessions. The plaintiff’s evidence was that he takes Panadol Osteo for both the neck and back, and that currently he is having five sessions of physiotherapy for his neck under the public health system.
[96]PCB 24
135 I accept that the plaintiff reported taking medication of Panadeine Forte and Panadol Osteo for neck and back pain. I accept the plaintiff has exaggerated his reliance upon Panadeine Forte over the abovementioned period given that his general practitioner prescribed Panadeine Forte on one occasion in the past twelve months. I accept the level of medication the plaintiff takes is for the neck and back pain. I accept that the level of medication the plaintiff takes for his neck pain as at the low end of the scale.
Headaches
136 In his current affidavit, the plaintiff’s evidence is that when his neck pain worsens, it spreads to his head, and he suffers headaches, for which he takes Naramig tablets. He suffers headaches a few times a week.
137 In cross-examination, the plaintiff said that he used to have headaches two to three times a week. Currently, he has headaches once a month, for which he takes Naramig and Minax.[97]
[97]T43, L11-19
138 I accept the plaintiff suffers headaches about once a month, requiring medication of Naramig and Minax as a result of his neck pain. I accept the consequence of headaches and the medication he takes is at the low end of the scale.
Soccer
139 The plaintiff’s evidence is that he had a lifelong love of soccer. Counsel for the plaintiff submitted that I should find he is no longer able to participate in soccer, primarily as a result of his neck injury.[98] Specifically, he cannot run, turn or perform headers.
[98]T91, L5-7
140 The plaintiff’s evidence was confusing and inconsistent in relation to soccer.
141 I accept that the plaintiff’s inability to play soccer is a combination of both his back and neck pain.[99] The plaintiff’s evidence was that he was able to play soccer prior to the accident.
[99]T40, L18-19
142 Prior to the transport accident, I accept the level of soccer he was playing amounted to kicking the ball with some mates. I take into account that prior to the transport accident, the evidence was that he suffered a shoulder injury for which he was receiving treatment. He was also suffering from low-back pain which required him to wear a lumbar brace and use a walking stick.
143 The plaintiff’s evidence in respect to soccer coaching is that he recently started coaching a youth soccer side twice a week for one hour per session. He enjoys the coaching but it aggravates his neck and back pain, and he takes Panadeine Forte after each coaching session to help him cope with the increased pain.
144 The plaintiff’s evidence is that once every month or two, after a soccer game, he participates in a wrap-up session with a community radio station. The segment takes less than half an hour to record, and he used to perform this activity more frequently before his 2013 accident.
145 The plaintiff’s evidence is that he attends soccer games occasionally, but less often now because he has to be careful how he sits or stands, and he avoids any game requiring extended driving.
146 I accept that, based on the evidence, the plaintiff’s inability to play soccer is now a combination of both his back and neck. The combination affects his ability to kick a soccer ball with his mates at the weekend, and that he attends games of soccer and comments on soccer less often. I accept that this is attributable to his neck and back at best, and the consequences attributable to the neck is at the low end of the scale.
Vestibular problems
147 The counsel for the plaintiff submitted that the Court should find that the plaintiff has suffered vestibular impairment as a result of the transport accident, based on the medical evidence of Mr Redhead and Mr Haw. Mr Haw expressed an opinion on the vestibular problems, but noted that he was not an expert in this field and that an opinion of an ear, nose and throat surgeon should be sought.[100]
[100]PCB 85B
148 The opinions of two ear, nose and throat surgeons were obtained. Mr Redhead supported the plaintiff and said that it was more probable than not that the vestibular impairment is a direct result of the transport accident of either the head injury or injury to the cervical spine.[101] He expected the vestibular impairment to improve with physiotherapy. In October 2016, he noted that there had been some improvement in balance due to regular physiotherapy, and that further improvement would result with specific vestibular physiotherapy.[102] Mr Hooper, an ear, nose and throat surgeon, could find no signs of vestibular dysfunction when he examined the plaintiff.[103] I note that the plaintiff did not report to Mr Brownbill or Associate Professor Drago, any complaints of vestibular dysfunction. In fact, Associate Professor Drago said his neurological examination was normal. In addition, the medical records of the general practitioner record that on 5 December 2016, the general practitioner received a letter from Associate Professor Drago, regarding the plaintiff being off balance:
“…no relation to car accident, will have MRI of whole cord at MMC.”[104]
[101]PCB 60 & 65
[102]PCB 65
[103]DCB 21
[104]Clinical notes from Dr Jim Drakopoulos, page 141
149 I accept that Associate Professor Drago took the view that the complaints of “off balance” did not relate to the transport accident. Mr Dooley said one could not explain symptoms such as poor balance, or a loss of balance, with walking quickly on the basis of a soft-tissue injury.[105]
[105]DCB 17
150 I accept that Mr Redhead was the only medical witness to support the fact that the plaintiff suffered vestibular impairment as a consequence of the transport accident. However, the thought physiotherapy had resulted in improvement, and the condition would improve further with further physiotherapy. I accept that based on Mr Redhead’s more recent report, any vestibular impairment is at the low end of the scale.
Sleep
151 The plaintiff’s evidence is that his sleep is affected and that he takes medication of Serepax every night, which enables him to have a “bit of a nap”.[106] Further, the plaintiff’s evidence was he has difficulty getting comfortable and falling asleep as a result of his ongoing neck and low-back symptoms. He also experiences symptoms of Anxiety during the night, which makes it difficult for him to sleep. The plaintiff says he has dark and morbid dreams since the transport accident, and suffers nightmares. As a result of his lack of sleep, he is often tired and lethargic during the day. I accept that the plaintiff attributes his lack of sleep and dreams to his neck, his low-back symptoms, and Anxiety, for which he is receiving regular treatment. In fact, the general practitioner’s records confirm that Serepax is being prescribed for his Anxiety. Accordingly, I accept that any sleep consequences attributable to the neck alone are at the very low end of the range.
[106]T89, L4-9
Computers
152 The plaintiff’s evidence is that he is restricted in his ability to keep his neck in one position. When he does, it becomes very painful. Further, the evidence is that, since the transport accident, and in more recent times, he has published his memoirs. He still writes articles for the local newspaper. The plaintiff’s evidence was that if he has to use a computer or reads for longer than half-an-hour, he is required to have breaks. If he is particularly bad, then he will lie down and rest.
153 As Ashley AJA said in Stijepic v One Force Group Aust Pty Ltd & Anor,[107] in assessing consequences:
“…the significance of what has been lost may be informed to an extent by what has been retained.”
[107][2009] VSCA 181 at paragraph [4] referring to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
154 I accept that, to a limited degree, the plaintiff is affected in his use of computers because of his neck injury. However, I take into account that the plaintiff has been able to publish his memoirs recently which has involved the use of his computer. I accept this consequence is at the middle of the range.
Driving and travelling
155 The plaintiff’s evidence was that his ability to drive is restricted by reason of the pain in his neck.[108] In his affidavit, the plaintiff said that driving aggravates the symptoms in his neck, low back and right leg. He finds it difficult to turn his head to check his mirrors, and perform head checks as a result of his neck pain and restriction of movement. He has difficulty driving for prolonged distances because of his low-back symptoms. The plaintiff reported this to some of the medical witnesses.
[108]T89, L24-25
156 I accept that as a consequence of the neck injury, the plaintiff has difficulty with head checks due to restriction of movement while driving, which is a consequence that I can take into account.
157 The plaintiff’s evidence was that he travelled to Greece in 2016. The flights to and from Greece were painful and distressing. He had difficulty with the extended sitting and not being able to lie down properly. He suffered back and neck pain.
158 Further, on his return flight, he encountered severe turbulence, which upset him and brought on Anxiety and panic sensations. I accept that overseas travel is affected by both his back and neck pain. I accept that the turbulence affected his Anxiety, which is not part of his claim.
159 Accordingly, I accept that the plaintiff suffered neck pain as a consequence of his overseas travel, which I assess at the low end of the scale.
160 In summary, I accept that as a consequence of his neck pain, the plaintiff has difficulty with head checks due to restricted movement in his neck when driving. I also accept that as a consequence of overseas travel, he suffered neck pain. I accept that this is at the low end of the range.
Fishing
161 The plaintiff’s evidence was that he does not fish now because his neck is “killing me”.[109] The plaintiff also gave evidence that his low-back pain stopped him from fishing. He found it difficult to lift the anchor out of the boat, and it was difficult to manage the prolonged sitting as a result of his back injury. However, I note that he was able to fish prior to the transport accident. I accept that the plaintiff gave confusing evidence on this topic. I accept that his ability to go fishing is affected by the combination of the low-back and the neck injury. I accept that his ability to fish and pursue this activity is a consequence of the neck injury, which I take into account.
[109]T90, L3-14
Conclusion
162 I accept the plaintiff has suffered the above-mentioned consequences as a result of the injury to his neck.
163 What was in issue was the consequences of the plaintiff’s injuries and whether they meet the test of seriousness for pain and suffering, in that they could be considered “more than significant or marked”, and as being “at least very considerable when compared with other cases in the range”.
164 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[110]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[110](Supra) at paragraph [13]
165 Section 93 of the Act was intended to restrict the availability of common law damages to plaintiffs whose impairments were of “very considerable” magnitude.
166 In determining the application, it is has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[111]
[111]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628 and Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
167 Taking all the evidence into account, I am satisfied that the evidence establishes the plaintiff now has pain in his neck, and in terms of limitation, limits his ability to a limited extent, in returning to playing soccer. In respect of his domestic activities, he no longer assists his wife with household chores as he did prior to the transport accident. I take into account that the plaintiff is receiving limited treatment and that his medication requirements are at the low to medium end of the scale.
168 When these consequences are balanced with what the plaintiff has retained, I am not persuaded, on the balance of probabilities and in the light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept that the plaintiff suffered a physical injury to his neck in 2010. I accept that the neck injury has had consequences to him which are considerable, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
169 Accordingly, I dismiss the application.
170 I will hear the parties on costs.
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