Nikkelson v Transport Accident Commission
[2019] VCC 1514
•3 October 2019
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04217
| TREVOR JOHN NIKKELSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 28 August 2019 | |
DATE OF JUDGMENT: | 3 October 2019 | |
CASE MAY BE CITED AS: | Nikkelson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1514 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – transport accident – injury to the lumbar spine
Legislation Cited: Transport Accident Act 1986 (VIC)
Cases Cited:Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702
Judgment: Leave granted to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J Seccull QC with Mr S Jurica | Saines Lucas Solicitors |
| For the Defendant | Mr W R Middleton QC with Ms F Spencer | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff seeks the grant of a certificate entitling him leave to commence proceedings at common law for pain and suffering damages as a result of injuries he sustained to the lumbar spine, including a compression fracture at L1 when struck by a motor vehicle on 21 August 2013. The plaintiff’s Particulars of Injury also identified an injury to the pelvis and psychiatric injury, but these were not pursued at the hearing.
2 Mr Seccull of Queen’s Counsel together with Mr Jurica of counsel appeared for the plaintiff, and Mr Middleton of Queen’s Counsel appeared together with Ms Spencer of counsel on behalf of the defendant.
3 The parties agreed that the case falls to be judged as one of a type that is commonly described as a “range case,” that is, whether or not the plaintiff has established that the injury he suffered is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, capable of being fairly described as “more than significant or marked” and as being “at least very considerable”. This test is one that brings into the play the consideration of both objective and subjective elements.
4 For the reasons that follow, I am satisfied the plaintiff has proved the existence of a serious injury.
Background
5 The plaintiff was born in 1984. He left school before the completion of Year 9. He deposed that he had not passed any year level after Grade 3. He has no trade or professional qualifications. He has held no meaningful employment since leaving school. He has children by different partners, with the youngest two currently residing with him and their mother.
The accident
6 The plaintiff explained that he was walking in McCulloch Street, Donald, after having left a party held at the residence of a friend. He had commenced to walk across Houston Street and after a short distance was struck by a car from behind. He was thrown onto the vehicle’s bonnet. He then fell onto the road. He suffered injuries, especially to his back. He picked himself up off the road and made his way back home. He said at the time he had the care of his daughter, Kirstie, who was approximately five years of age and was living with him, and he was keen to get home to her. A bag containing alcohol, and the plaintiff’s identification, was left behind by him at the scene of the accident and a police constable returned it to the plaintiff. In the aftermath of the accident and because of the effect on him of his injuries, the plaintiff was subsequently conveyed by ambulance to the Wimmera Base Hospital in Horsham.
7 I am satisfied that the plaintiff was involved in a transport accident within the meaning of the Transport Accident Act 1986 (‘the Act’) and that he sustained injuries because of it. The defendant did not suggest that the accident did not occur. I note the constable who delivered back the plaintiff’s bag to him conducted an interview with him at the Donald Police Station on 23 December 2013 and made an accident report. He noted that on returning the bag to the plaintiff he presented “with injuries consistent to that of being involved in a motor vehicle accident”.[1]
[1]Exhibit P16, Plaintiff’s Court Book (“PCB”) 91
8 The plaintiff complained of suffering from back pain that is constant and varies in its intensity. He said that the pain in his back is made worse by walking or standing for a long time, bending or twisting the spine, and heavy lifting. He described, too, that cold weather worsens his pain. He said he experiences pins and needles, numbness, and a burning sensation that affects the legs most of time, and he is in constant pain in each leg.
9 The plaintiff described his sleep pattern as frequently interrupted as a result of pain from his back. He said it keeps him awake at night time, and he feels tired and lacks energy of a morning as a result. He said he was “not generally like this before the accident”.[2]
[2]Exhibit P1, PCB 9 paragraph [11]
10 The plaintiff said he has suffered a severe impact to his life and what little enjoyment he had has been lost or severely impeded because of the transport accident. He described how his back injury limits his ability to play with his daughter and his two youngest children. He said he is unable to lift the youngest two children. He said he could not change the nappies on the youngest child, whereas before the accident, he was a hands-on father. He said the back condition also limits his ability to undertake housework, which was something he undertook to a significant extent prior to the accident.
11 The plaintiff freely admitted to a considerable criminal history, as well as a lengthy history of alcohol and drug abuse, together with diagnosed Depression and Paranoid Schizophrenia. He has been admitted to psychiatric units in Ballarat and Bendigo on numerous occasions. He accepted that in consequence of his self-inflicted abuse of drugs and alcohol he has suffered difficulties with his memory and concentration.
12 The plaintiff made a second affidavit on 29 April 2019[3] that provided further information. He detailed the ages and domiciles of his children. He has five children: a daughter aged 16, who lives with her mother; a daughter, aged 10, who lives with her grandmother; a son who is 9 who lives with carers; and two other sons, aged 2 and 1, the latter two boys being the children of a relationship with his current partner, Ms Elyse Foy, with whom he has been living for approximately three years on and off. He receives parenting payments and other forms of social security, as does Ms Foy, who does not work.
[3]Exhibit P2, PCB 63-67
13 The plaintiff’s second affidavit reiterated his difficulties with sleep. He said that prior to the accident “I usually used to get a good chunk of sleep. But now I get broken patches of sleep due to my back pain”.[4] He deposed to finding it harder to sit, stand or walk for any length of time.
[4]Exhibit P2, PCB 64 paragraph [6]
14 The plaintiff said that because of his experience of back pain he tries to avoid walking up or down stairs, or walking on uneven ground, due to its aggravating effects on his back.
15 The plaintiff said when he was injured in the motor vehicle accident he was looking after Kirstie and he was doing all the housework, which he must now avoid because of his back pain. Chores such as washing, vacuuming and mopping are difficult. He finds it hard to pick up his two youngest children and play with them due to his back pain, and his inability to participate as fully with them as he would wish to do as a father, brings with it considerable upset. He also explained that he finds it difficult to shower and wash himself, and he encounters particular difficulty in putting on trousers and taking them off, and also putting on and taking off socks and shoes.
16 The plaintiff said that before the accident he had no difficulty doing the shopping and would usually do one big shop a fortnight, but now Ms Foy is required to do most of it, because it is too difficult for him to bend down and carry heavier items of groceries.
17 The plaintiff described how his interests and activities were limited before the accident. He said he enjoyed gardening and landscaping. He said he derived satisfaction from digging up garden beds and planting things, and particularly helping friends with their gardens. In previous rental accommodation he had no garden of his own to speak of, but that was not always the case, and nor is it currently the position. He has a garden, but he cannot work in it. He said he is required to pay someone to mow the lawn.
18 The plaintiff said that before the accident he loved working on and repairing friend’s motor cars in a shed at his home. The plaintiff has never held a driver’s licence, but his father apparently taught him to tinker around and fix them up, and this was a pursuit from which he derived satisfaction and enjoyment. He said he hardly does this anymore because it is simply too physical an activity for his back to cope with.
19 The plaintiff painted a picture of a substantially non-existent social life. He said he does not go out much anymore because of the pain, whereas before the accident he would hang around with mates and have drinks with them at their homes.
20 The plaintiff really has not had any sporting pursuits since he was a schoolboy.
21 An affidavit made by Ms Foy was received into evidence.[5] She said she has known the plaintiff since she was approximately 12 years of age. She said their relationship has been an on and off one but they have two children. She explained that the plaintiff has told her that he suffers from back pain “all the time” and that she can tell by the way he walks and sits that he is uncomfortable, and that when he is in pain he is fidgety. She said she often observes him taking medication.
[5]Exhibit P4, PCB 68-70
22 Ms Foy said the plaintiff would take big chunks of sleep in the past but nowadays he does not get much sleep at all. She said she is conscious of him tossing and turning in bed. She said she has seen him having difficulty sitting, walking or standing for any length of time, and he appears to be uncomfortable, and he is often holding his back with his hand. Ms Foy said that she has to undertake the housework because the plaintiff’s back prevents him from doing it. She said the plaintiff does not do much of the shopping and it is something that is largely left to her.
23 Ms Foy said that before the accident the plaintiff was a very active parent to Kirstie and he would often walk her to school. She observed him playing with her in the past, but that is no longer the case, and she has witnessed him encountering difficulties in interacting by way of play activities with their own children.
24 Ms Foy said that before the accident the plaintiff was a bit of a fixer of things and undertook small repairs around the home, but this, too, has stopped.
25 Ms Foy said it was necessary for her to help the plaintiff wash and dry the lower part of his body and to cut his toenails because he is unable to reach down to do so by himself.
26 Ms Foy described the plaintiff as having been good with the gardening before the accident – tidy and neat were his hallmarks – but he is unable to do much in the garden now, something that Ms Foy attributes to his complaints of back pain.
The Plaintiff cross-examined
27 The plaintiff was cross-examined a good deal about the reliability of his evidence concerning the extent of his intoxication at the time of the motor vehicle accident. He denied the accuracy of the comment attributed to him in a statement signed and prepared by Leading Senior Constable Connell on 21 October 2013 at the Donald Police Station. Part of the statement attributed to the plaintiff was that on 19 August 2013, “‘I went to Josh Wilson’s house in Donald. I consumed a lot of alcohol that night. I don’t know exactly how much, but I was very drunk”.[6]
[6]Transcript (“T”) 12, Lines (“L”) 23-26
28 The plaintiff said that part of the statement that stated that he was very drunk was not true, although he signed the statement. He said he would sign police statements if he was asked to by a police officer even if they were inaccurate, despite him having had considerable dealings with the police over the course of his life. He said, “I’ve signed every single document that they’ve asked me to”.[7] The plaintiff also said that he thought it likely that by the time the police interview was taken he had been drinking solidly for about one-and-half to two weeks and, therefore, his statement about his level of intoxication on the night of the accident was unreliable. I accept both his account and his explanation as being likely.
[7]T13, L3-4
29 The plaintiff said, in response to questioning by Mr Middleton, that any medical reports relied on in the proceeding that suggested he had stopped drinking eight or nine years ago were wrong. He said he had stopped drinking about six months ago and nowadays he rarely drinks.
30 The plaintiff denied Mr Middleton’s suggestion that he had previously experienced a disrupted sleep pattern because of his mental issues. He said that before the accident he slept well and that his ability to sleep soundly helped ameliorate his mental health.[8]
[8]T15
31 The plaintiff was asked to explain why there had been so very few visits by him for medical attention for his back injury in the years since the transport accident.[9] He said he had been endeavouring to:
“… go off the painkillers because it made me too groggy and I nearly burnt down me house with me daughter in it. So, I tried … [to] go on with life as best I could, and yeah, it was always there, the pain, but each winter went past and it just got worse and worse … .”.
[9]T20
32 The plaintiff said that not obtaining treatment had been “stupid”, but as for doctors he had seen in the past, as far as he could surmise, all they wanted to do was to put him on OxyContin, which he found very addictive. He recounted an incident involving a fire that had commenced at his home when he had his child present and he had been so affected by medication that he was not immediately roused from his sleep. He said he did not want a repetition of that experience.
The Plaintiff’s medical evidence
33 In addition to his affidavit and that of Ms Foy, the plaintiff relied on medical evidence comprising clinical records from Wimmera Health Care Group, Ballarat Health Services and the Donald Family Clinic, made up of notes from Dr Oleg Rachinsky, dated 12 February 2014;[10] Dr Talibek Karataev, dated 13 February 2014[11] and Dr Rachinsky, dated 20 November 2018.[12]
[10]PCB 16
[11]PCB 17
[12]PCB 18-19
34 Dr Darko Slipcevic, who practises from the St Arnaud Medical Centre, is the plaintiff’s current general practitioner. The plaintiff attends on Dr Slipcevic approximately monthly, not so much for treatment it seems, but for the provision of prescriptions for various medication, including slow-release Tramadol, his dosage being 100-milligram tablets taken some three to four times daily. He said he also takes one or two tablets of Nurofen daily. He takes Valium to help with his sleep and to assist in ameliorating his back pain.
35 Dr Slipcevic’s report dated 6 May 2009[13] was of little assistance. He reported that the plaintiff had been his patient since 9 December 2016, and since then had been:
“… treated mainly for anxiety, occasionally for low back pain with acute exacerbations requiring analgesia. He had no neurological deficits, was able to ambulate well with no difficulties and … pan management was satisfactory with pain killers.
He has not been referred to pain clinic and I have not requested any scan, clinically he was assessed as mechanical low back pain which responded very well to medications which needed only occasionally. His visit are mainly for anxiety management and his regular medication.”
(sic)
[13]Exhibit P15, PCB 73
36 The clinical record[14] of the plaintiff’s treatment from the St Arnaud Medical Centre accorded with Dr Slipcevic’s report.
[14]Part of Exhibit P15
37 Records from the Donald Family Clinic were produced by the plaintiff. They included, for example, a report from Dr Rachinsky, who wrote to the plaintiff’s solicitors on 12 February 2014[15] that he had examined the plaintiff on 20 August 2013 in the Emergency Department of the Donald Hospital and had identified tenderness on the right side of the abdomen and tenderness at the right shoulder and low back. There were multiple skin grazes and bruising, including to the plaintiff’s forehead, and to the low side of his back. By 21 October 2013, the L1 fracture had been identified. He referenced the plaintiff’s past history, including the following attendances:
[15]Exhibit P8, PCB 16
· 29 December 2001 – insomnia
· 8 September 2003 – depression
· 8 September 2003 – obsessive thinking
· 10 August 2007 – schizophrenia
· 21 October 2013 – L1 fracture
38 A further report by Dr Rachinsky, dated 20 November 2018, detailing the plaintiff’s attendances, was provided to the plaintiff’s solicitors. The report noted that the plaintiff had presented at the Horsham Emergency Department on 26 August 2013 complaining of low back pain, difficulties walking and numbness over his buttocks. A CT scan was performed, and a mild wedge compression fracture of L1 vertebral body was detected. The plaintiff was seen by Dr Karataev during the period 21 August 2013 to 16 October 2013 concerning pain management. Dr Rachinsky saw the plaintiff on 21 October 2013 and following his assessment concluded that pain was neuropathic in nature. Lyrica was prescribed to control the pain and the plaintiff was referred for CT scan to exclude nerve root compression. He was next seen on 29 October 2013 for review. The plaintiff said that his pain had settled with Lyrica and he did not attend for the CT examination. Thereafter, and until 21 July 2014, Dr Rachinsky saw the plaintiff “on number of visits due to psychiatric conditions and back pain was not mentioned”. Moreover, Dr Rachinsky noted that:
“Mr Nikkelson was not seen in Donald Family clinin for 3 years. He presented on 05/09/18 and saw Nurse Practitioner Genevieve Foot complaining of back pain. Then he was seen by relieving doctor on 2 occasions and finaly saw me on 01/10/18 for above mentioned back pain. Patient agreed to start on Lyrica as it did control the pain in the past. I have not seen Mr Nikkelson since.” [16]
(sic)
[16]Exhibit P18, PCB 18-19
39 Dr Karatev, of the Donald Family Clinic, reported to the plaintiff’s solicitors by letter dated 13 February 2014.[17] The report addressed matters I have already mentioned in relation to the plaintiff’s presentation following the transport accident.
[17]Exhibit P8, PCB 17
40 Dr John Gallichio, the acting director of Medical Services Wimmera Healthcare Group, provided a report dated 18 March 2014.[18] It consisted of material he had derived from a search of the records of treatments received by the plaintiff. He noted that a CT examination of the spine revealed a mild wedge compression fracture of the first lumbar vertebral body.
[18]Exhibit P5, PCB 11
41 The plaintiff tendered a report from Ballarat Health Services dated 12 December 2014,[19] furnished under the hand of Dr Danvers, deputy director of medical services. Dr Danvers said that the contents of her report were derived from records, but she had not provided any direct care to the plaintiff. In any event, the record was limited to one attendance on 26 August 2013 and a subsequent fitting for a brace.
[19]Exhibit P6, PCB 13
42 Mr David Brownbill is a consultant neurosurgeon. He provided a medico-legal report following examination of the plaintiff at the request of the plaintiff’s solicitors dated 7 June 2017.[20] The plaintiff’s history disclosed to Mr Brownbill comprised a complaint of low back pain that was “present all the time being worse with bending or physical activity”.[21] The plaintiff recounted shooting pains “[g]oing up and down both legs and they burn”,[22] with the experience of pain increasing on physical activity. Mr Brownbill wrote that on examination there was essentially a full range of thoracic lumbar spinal movements freely being performed by the plaintiff, and there was no objective neurological abnormality in the lower limbs, and there were no signs of radiculopathy. He noted the medical history indicated there was a mild compression fracture of the first lumbar vertebra. Mr Brownbill did not consider there had been any cerebral damage caused in the accident, nor did he anticipate any untoward neurological sequelae for the plaintiff. He thought it likely some low back pain would continue, of a fluctuating type, and indefinitely. Beyond recommending that the plaintiff avoid heavy lifting, there were no other activity restrictions that Mr Brownbill thought appropriate from a neurological perspective. Mr Brownbill thought there was a need to avoid heavy lifting as part and parcel of the plaintiff’s activities of daily living. [23]
[20]Exhibit P10,PCB 29
[21]PCB 29
[22]PCB 29
[23]Exhibit P10, PCB 30
43 Mr John O’Brien is an orthopaedic surgeon who provided a medico-legal report dated 3 April 2019 at the request of the plaintiff’s solicitors.[24] He wrote of the plaintiff having described suffering from low back pain, the severity of which the plaintiff assessed as approximately 8/10 on the Visual Analogue Scale. The plaintiff said that the pain extended across his lower back and sacral region to the lateral aspect of both of his hips. He told Mr O’Brien that the pain was aggravated by activities such as walking, prolonged sitting and standing and twisting, turning, bending and lifting. The plaintiff said he experienced intermittent shooting pain extending to both legs with the pain extending down the anterior and, in particular, posterior aspect of both legs to the soles of both feet, with some associated pins and needles. The plaintiff told Mr O’Brien that his leg pain was precipitated principally by walking but could also come on if he stood or sat for more than half an hour. He said that his experience of pain was much worse in cold winter weather. Mr O’Brien reported the plaintiff’s dosage of Tramal SR was 100 milligrams, four a day, for pain. The plaintiff described that with the taking of Tramal SR tablets, the severity of his pain reduced to about 6/10 on the Visual Analogue Scale. The plaintiff told Mr O’Brien that he was not taking any illicit drugs, nor abusing alcohol.
[24]Exhibit P11, PCB 33-34
44 Mr O’Brien observed[25] the plaintiff to move quite freely, but he did require the assistance of Ms Foy, who attended the consultation with him in order to get his shoes on and off, a restriction consistent with the plaintiff’s and Ms Foy’s affidavit evidence. Mr O’Brien noted the history of the L1 fracture and of the plaintiff having worn a spinal brace for a number of months. Mr O’Brien said that the plaintiff’s physical signs were subjective, with minimal restriction of lumbar movement, although this was accompanied by the complaint of pain. He found no clinical evidence of nerve root compromise.
[25]Exhibit P11, PCB 35-36
45 Mr O’Brien thought that any minor compression fracture the plaintiff had suffered would have healed, and ought not, therefore, be the source of ongoing low back pain. Accordingly, he considered it was difficult to define a specific pathology underlying the plaintiff’s pain generation and suggested that he presented with chronic non-specific low back pain, possibly related to the effects of a soft-tissue injury that would have accompanied the L1 fracture.
46 Mr O’Brien thought that the plaintiff’s prognosis was poor, but this was due to the prospect of ongoing disability associated with chronic pain and not pathology of injury. He thought, overall, the plaintiff was only moderately limited in his general, social, domestic and recreational activities.
The Defendant’s medical evidence
47 Mr Gary Speck, orthopaedic surgeon, in a report to the Transport Accident Commission dated 15 February 2019,[26] commented on the records that identified the plaintiff as having sustained soft-tissue injuries to the trunk as a result of the transport accident but that had, by the date of his examination of the plaintiff, resolved, and a mild compression fracture of L1, associated with soft-tissue injuries to the lumbar spine that had also resolved. He also reported a finding of a pain syndrome impacting the plaintiff’s back. Dr Speck said that the plaintiff had ongoing restrictions because of the pain syndrome, but that his history suggested that, domestically, he had been relatively inactive and, moreover, had not described any hobby, specifically, or any real change in his leisure activities or hobbies.
[26]Exhibit D1, Defendant’s Court Book (“DCB”) 4-19
Submissions
48 Mr Middleton submitted[27] that if the plaintiff suffered a transport injury then it has resolved, and there is no subsisting injury to the spine, and that his symptoms of pain are non-organic and are suggestive of psychological factors, such as a chronic pain disorder.
[27]T38
49 Mr Middleton submitted that the plaintiff’s credit was impugned because he had deposed that he had not worked since leaving school when there is contrary evidence.
50 Mr Middleton relied on the medical reporting to the cumulative effect that, from a neurological point of view, the accident caused no deficit, and from an orthopaedic point of view there has been a resolution of the L1 fracture although the plaintiff may have developed a pain syndrome as a result.
51 Mr Seccull submitted[28] that the consequences experienced by the plaintiff as a result of the accident meet the statutory threshold because they are very considerable. He contended that the plaintiff’s history of drug and alcohol abuse, and his conflicting evidence by way of histories to doctors of when he ceased drinking to excess, did not warrant criticism.
[28]T46
52 As to the criticism levelled at the plaintiff’s evidence about his alcohol consumption on the night of the accident, the plaintiff’s claim for compensation was dated 26 February 2014 and the account given in the claim form[29] was that he had been “at a friend’s birthday party and I had a few drinks.”[30] That account was given by the plaintiff at a time more contemporaneous to the accident than subsequent histories provided to doctors and it was submitted, therefore, that I should be satisfied that the Claim form was more reliable. I agree.
[29]T46
[30]T46, L20-21
53 Mr Seccull pointed to the history of attendances by the plaintiff on Dr Slipcevic for low back pain with acute exacerbations requiring analgesics. In his report dated 6 May 2019,[31] Dr Slipcevic identified mechanical low back pain.
[31]Exhibit P15, PCB 73
54 It was further submitted on behalf of the plaintiff that the prescribing by the plaintiff’s doctor of Tramadol was indicative of ongoing problems derived from the plaintiff’s mechanical back pain and symptoms, as opposed to a mental-type condition.
55 The plaintiff also relied on the report of Mr Thomas Kossmann, orthopaedic surgeon, dated 30 November 2016,[32] who identified that the plaintiff had suffered a mild compression fracture and, on prognosis, regarded the plaintiff’s condition as “guarded”. He thought that the plaintiff should not walk for long distances on [un]even ground, up and down stairs or inclines, declines, climb up and down ladders, kneel or squat, or carry heavy items weighing more than 5 kilograms.
[32]Exhibit P9, PCB 20-27 at PCB 24
56 Mr Seccull submitted that the identified restrictions amounted to direct consequences the plaintiff will need to manage in going about the activities of daily living and could well be regarded as serious when judged according to the applicable legal test.
57 Mr Seccull submitted that a fair reading of the medical reporting indicated that there was initially an organic injury by way of a fracture of the first lumbar vertebra. He submitted that, to the extent the doctors in more recent times have described the organic injury as having healed, but the pain condition or syndrome having developed, it has its genesis in the organic injury.
58 Mr Seccull also submitted that a further basis of satisfaction that the plaintiff’s pain condition has an ongoing organic basis could be identified in Mr O’Brien’s report when he wrote:
“Thus from a clinical perspective it is difficult to define specific pathology underlying pain generation and this would suggest the patient now presents with chronic non-specific low back pain, possibly related to the effects of soft tissue injury which would have accompanied reported fracture.” [33]
[33]Exhibit P11, PCB 36 at paragraph [3]
59 Mr Seccull submitted[34] that a fair reading of Mr O’Brien’s report is that if the lumbar vertebra fracture at L1 has healed, then the plaintiff’s ongoing problems are possibly due to the unresolved soft-tissue injury that accompanied the fracture.
[34]T40-41
60 As to the plaintiff’s prognosis, Mr Seccull referred to that part of Mr O’Brien’s opinion[35] that the plaintiff is “moderately limited” in his pursuits. Counsel submitted that moderately limited is greater than “minimally limited”. I agree, but, “moderately limited” is not equal to or more than considerable, although, in any event, a judgment on such matters is properly left for the Court on the whole of the evidence and not for doctors.
[35]T54
61 Mr Seccull submitted[36] that the nearly three year period the plaintiff did not seek treatment was not determinative of an absence of acute back pain but, rather, was explicable in the context of the life he was then leading, being one that was accompanied by a history of drug addiction that he was trying to avoid, but that when the pain became too great to bear he again sought treatment from his general practitioner. I accept that submission has some force.
[36]T55
Analysis
62 I do not accept Mr Middleton’s submission that the discrepancies in the plaintiff’s history of employment is a matter of weight in the determination of his application. It has no bearing on the question whether the plaintiff suffered a transport accident, or suffered injuries as a result, and has only remote relevance to the degree of credibility I can place in the plaintiff’s evidence of the existence of, and effects of, ongoing consequences to him from the accident, which evidence I have in any event accepted.
63 The primary hurdle that it is necessary for the plaintiff to overcome is whether he has identified an organically-based injury that has been caused by the transport accident and has occasioned a long-term impairment to his low back.
64 The medicine is, to some degree, equivocal on the explanation of the plaintiff’s account of acute pain. However, the whole of the medical evidence, including the opinion of Mr O’Brien, is that the transport accident caused a soft-tissue injury, with a first lumbar vertebra fracture, but that has since healed or largely resolved. Mr Speck contends that the consequences relied on by the plaintiff are, in fact, referrable to a non-organic pain syndrome.
65 Mr O’Brien said that while he could not identify a pathology underpinning the plaintiff’s pain generation and that the plaintiff presented with chronic non-specific low back pain that was possibly related to the effects of the soft-tissue injury which would have accompanied the L1 vertebra fracture,[37] the opinion postulates that the plaintiff’s lumbar vertebra fracture at L1 having healed, his ongoing pain is possibly due to an unresolved soft-tissue injury that accompanied the fracture.
[37]Exhibit P11, PCB 36
66 It is sometimes helpful to enquire what other causes may account for a plaintiff’s presentation. In Arthur Conan Doyle’s “The Adventures of Sherlock Holmes” the eponymous detective said that, “Once you eliminate the impossible, whatever remains, no matter how improbable, must be truth.” That aphorism is an aside and must of course not usurp proper principles of law.
67 Mr Speck’s diagnosis[38] is that the plaintiff suffered two organic injuries, both of which have resolved, whereas the third, a “pain syndrome relating to his back” has not resolved, for which he did not think there would be a likely resolution when assessed against a backdrop of a “5½ year history of back pain with no consistent attempt at rehabilitation”.[39]
[38]Exhibit D1, DCB 12
[39]DCB 12
68 At the end of the day, the matter of diagnosis comes down to this: The plaintiff is suffering episodes of pain and, by all accounts, pain in the low back; however, the injuries suffered from the transport accident have resolved so that they should no longer account as the means of production of the acute pain complained of. Mr Speck diagnosed a pain syndrome. Of course, the aetiology of a pain syndrome may be complex, and be organically or mentally based, and the defendant’s medical material has not excluded the organic as a cause of the continuing pain. Of course, the defendant is not charged with any relevant burden of proof, nor does it fall to it to disentangle. That is the plaintiff’s responsibility. However, Mr O’Brien’s opinion suggests the possibility of the development of a pain syndrome as a result of the L1 fracture suffered by the plaintiff in the transport accident, and in that regard his opinion accords with Mr Speck. I have also borne in mind that the plaintiff takes prescription opioids which when taken by him lessens his pain. The fact of the ongoing provision of prescription medicine and the plaintiff’s evidence that he derives benefits from their use, is more consistent than not with the observation by Mr O’Brien that the pain syndrome has an organically-based origin and is responsive to medicines and therefore has been caused by the fractured vertebra the plaintiff suffered. Having considered all of the evidence, I prefer this analysis when regard is had to the plaintiff’s attendances on Dr Slipcevic for low back pain, with acute exacerbations requiring analgesics, and Dr Slipcevic’s report dated 6 May 2019 of a diagnosis of a mechanical low back pain, one that I am satisfied is consistent with an unresolved soft-tissue injury.
69 The absence of the plaintiff requiring medical attention for his back for a period of approximately three years cannot be ignored. It naturally enough strikes one as counterintuitive against a backdrop of the plaintiff having been afflicted by the constant level of pain he described. The explanation proffered by Mr Seccull of the plaintiff wanting to avoid the risk of a relapse is some explanation for the absence of attendances, especially when considered in the context of the plaintiff’s addled existence, interspersed by bouts of alcoholism and the effects of drug dependency and mental disturbances. In addition, the plaintiff said, “And I – I just drank a lot of alcohol and smoked a bit of marijuana for my back problems.[40]”.
[40]T30
70 On balance, I am satisfied that the plaintiff has discharged his burden of proof and has identified an injury to his low back that is of an organic nature and has been caused by the transport accident, and that has occasioned impaired function to the spine. I am satisfied, too, that the impairment is long term, on the basis that the condition has beset the plaintiff for the better part of six years and, to date, is only relieved by ongoing pain medication.
Pain and suffering consequences
71 Has the plaintiff’s injury then brought with it consequences that meet the statutory threshold? I am satisfied that it has.
72 Mr Seccull submitted[41] that the plaintiff’s current life, when viewed in the context of rearing two young children with Ms Foy, spoke tellingly of the difficulties his back condition creates for him in his daily life. Counsel submitted that the plaintiff’s present but truncated and restricted life experience has brought with it consequences that are, for him, significant, including limitations on his ability to assist with, and engage with, his children, and to assist, as he did in the past, with cooking, cleaning, shopping and gardening.
[41]T48
73 Mr Middleton quite rightly observed, by way of submissions, that the effects that have been visited on the plaintiff by the motor vehicle accident may well be “‘important or substantial, without being very considerable’”.[42] Mr O’Brien observed that the plaintiff’s prognosis was poor because of the prospect of an ongoing disability associated with chronic pain, but that he considered, overall, the plaintiff was only moderately limited in his general, social, domestic and recreational activities.
[42]T37, L28-29 and Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702 at 703
74 The fact that the plaintiff’s social, domestic and recreational activities were not considerable before the accident, will not necessarily mean that what of them he enjoyed, were unimportant to him. The ability to walk a child to school and collect them at day’s end may be a matter of substantial satisfaction to a person of otherwise limited means or circumstances, and to lose the same may be significant. I am satisfied it is so in this case. So, too, may be judged other activities mentioned by the plaintiff, such as tinkering with motor engines or working in his own or a friend’s garden. The dependence on others to assist with the everyday, but necessary, characteristics of dressing and personal grooming, also may be regarded as consequences that are “more than significant or marked” to the plaintiff and, when judged according to the range of like impairments, capable of being assessed as “serious”.
75 For the foregoing reasons, I am satisfied that the plaintiff is entitled to the grant of a serious injury certificate for pain and suffering.
76 I will hear the parties on the proper form of final orders.
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