O'Dea v TAC
[2017] VCC 1208
•30 August 2017
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05199
| SAMUEL O'DEA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | DYER | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 12 & 13 July 2017 | |
DATE OF JUDGMENT: | 30 August 2017 | |
CASE MAY BE CITED AS: | O'Dea v TAC | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1208 | |
REASONS FOR JUDGMENT
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Subject: Transport Accident
Catchwords: Serious injury; amateur cyclist; spinal injury; youthful plaintiff; extent of consequences
Legislation Cited: Transport Accident Act 1986 section 93
Cases Cited: Humphries v Poljak [1992] 2 VR 129; Abbas v TAC [2015] VSCA 217
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Purcell with Mr M. Fogarty | Arnold Dallas McPherson |
| For the Defendant | Mr A. Moulds QC with Ms C. Willshire | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Samuel O’Dea seeks leave in accordance with section 93 of the Transport Accident Act 1986 (“the Act”) to claim damages at common law for injuries received in a transport accident which occurred on 29 August 2012. Mr O’Dea is 23 years of age and was 18 years of age when he was involved in the transport accident.
2 At the time of the transport accident he was cycling with a group of riders at One Tree Hill near Bendigo when he was struck by a motorcyclist travelling in the opposite direction, apparently on the incorrect side of the road.
3 As a result of the injuries received, he was taken to the Bendigo Hospital and radiology revealed fractures of the T8 and T9 spinal vertebra.
4 Mr O’Dea completed his secondary education and then an apprenticeship as a motor mechanic, which occupation he continues with a Mercedes dealer in Queensland. His application for leave was based principally on the consequences suffered by him in relation to the sport of road cycling, in which he had apparently excelled as a junior.
5 He present application relies upon paragraph (a) of the definition of serious injury set out in section 93(17) of the Act. Mr Purcell of counsel, who appeared with Mr Fogarty on behalf of the plaintiff, identified the spine as the body function said to be relevantly impaired or lost for the purposes of the definition.
6 Mr Moulds QC, who appeared with Ms Willshire for the defendant, identified the extent of consequences flowing from the transport accident as being the sole issue for determination. Mr Moulds QC conceded at the commencement of this application that the consequences of the injury were significant, but not very considerable.
7 The application proceeded largely on the basis of affidavit material and medical reports. The plaintiff was the only witness required for cross‑examination.
The lay evidence
8 Mr O’Dea had sworn two affidavits in support of his application on 5 May 2016 and 27 June 2017.[1] It is useful to summarise in short form the contents of those affidavits as relevant to my determination.
[1]Exhibit A, p.7-16
9 In the first affidavit the following matters were relevant:
· Mr O’Dea was in Year 12 at Bendigo Secondary College when involved in the accident.
· He had been a very active cyclist and had commenced cycling at the age of seven or eight. He had obtained some sponsorship at the commencement of 2012 and competed across Victoria in both road and track events.
· He had been a member of a junior team in Bendigo, and earlier had been part of the Bendigo Academy of Sport. At the time of the transport accident he was concentrating on open events with distances of up to 100 kilometres and sprint events on the track.
· In a normal week his training would involve usually two hours per night in road riding, and gym about twice per week.
· A number of his racing colleagues have gone on to achieve world titles.
· Following the transport accident he was treated conservatively, being in a back brace for approximately 12 weeks, and later discharged to a course of physiotherapy with narcotic medication initially supplemented by Panadol and Neurofen.
· Mr O’Dea did not sit his VCE exams but was credited with a pass without an ATAR score. He additionally did not cycle at the Murray Bridge Pedal Prix race which was won by Bendigo Senior Secondary College.
· In early 2013 he commenced an apprenticeship with a Mercedes dealer near Bendigo. He was in his third year at the time of his first affidavit.
· He suffers back pain at work, particularly with bending, lifting and twisting and tries to avoid these tasks.
· He continues to suffer constant back pain which is intense in the mornings or with activity during the day. Sitting for anything approaching one hour leads to stiffness and increased pains.
· In his domestic life he tries to avoid lifting activities which he had previously done.
· He returned to casual cycling in late 2012, but his ability to cycle in longer races has been impacted by the pain in his upper back which increases greatly after approximately an hour on the bike. This impacts on his training and the number of races in which he could compete.
· The restriction on his ability to train and race with the same level of intensity has impacted on his capacity to compete at a level which would allow him to be a national representative, a standard to which he believed he was capable before suffering injury.
· In the plaintiff’s most recent affidavit he confirmed the ongoing impact of his back injury noting that he continued to suffer back pain “which is always present but varies in its severity.”[2]
[2]Exhibit A, p.13[2]
10 I regarded the following matters from that second affidavit as relevant to my determination:
· The plaintiff was continuing to work as a motor mechanic at Mercedes Benz Brisbane after the completion of his apprenticeship.
· He has avoided heavy lifting for the most part in his employment by asking others to assist from time to time.
· Pain is increased by tasks such as working overhead with his arms outstretched and bending and twisting.
· He works with back pain every day and is generally tired and sore after a day at work.
· He takes over-the-counter pain relief such as Panadol for flare-ups, generally a few times per week, does stretching exercises and walking to alleviate his symptoms.
· He continues to cycle but generally manages approximately 150 kilometres per week as compared with around 500 kilometres per week prior to injury. This restriction is due to back pain.
· He continues to participate in cycling races, but believes his inability to train for lengthy periods is impacting on his performance. In late 2016 he tried increasing his training load which he found very difficult, but did manage to win at the Wangaratta Wheel race in December.
· He signed up for a 5,000 kilometre Indian Pacific race in March 2017, but had to withdraw after around four days as his back pain had increased to the point where it was severe. He underwent a further x-ray on his back after that time and was told to scale back his riding.
· He had wished, prior to the accident, to cycle at a level that would place him the top echelon of races, which he now cannot do.
“I had hoped to cycle professionally, but having been injured at 18, I have been unable to pursue this goal. Fellow riders my age whom I used to compete against are currently cycling in Europe professionally. I wish I was with them.”[3]
· He had tried to continue his involvement with cycling and the cycling community by making video blogs.
· He is concerned that his back pain may impact both on his cycling and on his employment as time passes.
[3]Exhibit A, p.15[9]
11 In cross-examination I noted the following matters as relevant to my determination:
· The sales manager of the Brisbane Mercedes dealership had spoken to the plaintiff’s employers in Bendigo before he commenced his new job. He was a specialist mechanic in Mercedes Benz.[4]
· In Queensland Mr O’Dea has a track bike, two road bikes and a mountain bike.[5]
· He travels to work switching between driving and catching the train. He lives about 16 or 17 kilometres north of the Gold Coast.[6]
· He does not cycle with a formal group but has a few mates with whom he has ridden with in Queensland. His cycling is limited over the last month to about 50 or 60 kilometres on the weekend. He has tried a couple of nights during the week to ride indoors, but he hasn’t been able to due to fatigue from work and then back pain.[7]
· The work in Brisbane is similar to the work performed at the Bendigo dealership. Mr O’Dea tries to do a lot more diagnostic work to avoid manual labour like changing tyres or brakes.[8]
· He may do some physical labour, but this would be only about one job every two weeks.[9]
· Although Mr O’Dea enjoyed doing the diagnostic work it was still quite physical, as there were certain parts that still had to be pulled apart for examination. It was less physical than for example putting in transmissions.[10]
· Mr O’Dea had been interested in work as a mechanic as an option, but had considered pursuing a career possibly riding overseas in Europe and other places to race professionally.[11]
· Before the accident he had been a member of the Bendigo and District Cycling club which was affiliated with Cycling Australia and UCI, the world governing body. He would cycle for the Bendigo Cycling Club and do Victorian and some national events every weekend prior to the accident.[12]
[4]T 10, L 29 to T 11, L 28
[5]T 12, L 24-25
[6]T 13, L 13-30
[7]T 14, L 1-26
[8]T 15, L 9-22
[9]T 16, L 4-7
[10]T 17, L 13-20
[11]T 17, L 21-28
[12]T 18, L 4-23
12 During cross-examination competition records maintained by Cycling Victoria were shown to the plaintiff and he was cross-examined as to those results from 2004 to 2016. These were ultimately tendered in evidence.[13] The plaintiff did not disagree with the contents of these records and the matters raised in cross‑examination essentially dealt with the context in which the results had been obtained. It is unnecessary to refer to this documentation in further detail at this stage. Further reference will be made to these records during the analysis of the evidence.
[13]Exhibit 1, p.44-46
13 The cross-examination referred to the plaintiff’s internet postings and other reference to his cycling in the media. He agreed that he had won a handicap race known as the Wangaratta Wheel Race on 27 December 2016. He believed it was a race over 1,600 or 2,000 metres, and agreed with a Border Mail press report stating:
“Wangaratta Wheel Race won by Bendigo Sam O’Dea ahead of a stronger field of riders.”
14 He agreed that the press report had been made, but did not agree that the field was strong in that race.[14]
[14]T 35, L 14 to T 36, L 25
15 Mr O’Dea agreed that he was pleased to have won that race stating:
“… it’s the first time I’ve done well in a race in a long time or that, like – I haven’t finished a fair few as well.”[15]
[15]T 36, L 29-31
16 Mr O’Dea agreed with a proposition put by me that he was still competing in 2017 at club level in A Grade in track and shorter events. He maintained that his real problem was in road racing.[16]
[16]T 39, L 27 to T 40, L 10
17 Mr O’Dea agreed that he would often ride using a GPS device that would record his distances ridden when uploaded by him. He was shown a bar graph setting out these distances from February 2016 until the end of January 2017. He agreed that he had cycled approximately 800 kilometres in December 2016 and 2,100 in January 2017. The plaintiff agreed with the proposition that if he was seriously cycling it could be anywhere from 350 to 500 kilometres per week depending on what level of competition. He stated that he had been on holidays when riding in January 2017.[17]
[17]T 41, L 14 to T 43, L 20 and Exhibit 1, p.22
18 The plaintiff gave further evidence about his cycling in cross-examination. I noted the following matters as relevant:
· He had ridden a total of approximately 3,500 kilometres in the 2016 calendar year.[18]
[18]T 44, L 5-11
· He had cycled with a friend in Thailand in July 2016, but was unsuccessful riding from Bangkok to Phuket. He rode in the north of the country around Chiang Mai and then caught a train back to Bangkok and hired a car.[19]
[19]T 44, L 14 to T 45, L 6
· He had ridden 230 kilometres in a day climbing a mountain that was 3,500 metres high.[20]
[20]T 45, L 22 to T 46, L 4
· He agreed riding approximately 415 kilometres on 11 December 2016, riding from Bendigo to Melbourne with a group of friends, and then riding around the bay. He caught the train back to Bendigo.[21]
[21]T 46, L 22 to T 47, L 22
· When he started his holidays in January he tried to ride as much as he could, although they were not necessarily fast kilometres. He had gone to Adelaide and rode around spectating at the Tour Down Under.[22]
[22]T 48, L 9-18
· He agreed he had posted:
“It’s exciting to see what 2017 can bring. One thing’s for sure, there’ll be many, many more Ks in the saddle. More videos and more overseas travels.”[23]
[23]T 49, L 21-24
· Mr O’Dea agreed he had entered the Indian Pacific Race in March 2017 which was a ride from Freemantle to Sydney Harbour. He described it as an unsupported road ride and not officially a race. It was on a similar level to the Great Victorian Bike Ride in that it did not require a racing licence or anything similar to enter.[24]
[24]T 50, L 2-15
· He had continued to renew his Cycling Victoria racing licence on an annual basis so as to be insured and registered to enter any race.[25]
[25]T 50, L 20-23
· The racing licence cost approximately $380. He agreed he could have won $1,000 for the Wangaratta Wheel Race, but split the prize money with four or five people.[26]
[26]T 51, L 5-15
· The Indian Pacific ride had no sponsors and was promoted through social media and portrayed as a race “just to get the following.”[27]
[27]T 52, L 24-28
· Mr O’Dea had entered that ride as an adventure due to it travelling to a lot of remote areas.[28]
[28]T 53, L 2-7
· He agreed he had done a lot of riding in January preparatory to this race, but stated, “Not structured training, but a lot of riding, yes.”[29]
[29]T 53, L 30 to T 54, L 3
· On New Years’ Eve he had ridden his bike from Watergardens Station near Point Cook to Dromana and believes he caught the train back.[30]
[30]T 54, L 21 to T 55, L 2
· He believes he started the Indian Pacific ride on either the 13th or 16th March with approximately 60 or 70 other riders.[31]
· He would have been happy to finish the ride within three weeks:
“… but anything around a month would have been good.”[32]
· He abandoned the ride shortly before Cocklebiddy in Western Australia on the fifth day of the ride. He had ridden 1,100 kilometres.[33]
· After the Indian Pacific ride Mr O’Dea was told to scale back his riding by his GP, Dr Thompson, who ordered a further x-ray.[34]
· Mr O’Dea agreed that in about April 2009 Dr Thompson had spoken to him about a posture issue due to a “slight kyphosis thoracic with a prominent right shoulder.”[35]
[31]T 55, L 8 to T 56, L 12
[32]T 57, L 20-23
[33]T 60, L 29 to T 61, L 13
[34]T 62, L 31 to T 63, L 14
[35]T 63, L 15-24
19 When re-examined by Mr Purcell I noted the following matters:
· He had pulled out of the Indian Pacific ride because his back pan was too high to sustain riding.[36]
[36]T 64, L 17-28
· In relation to his work, Mr O’Dea did more of the diagnostic work:
“Because of my back pain, if I do a lot of physical work then it accumulates and my back gets fatigued and more painful.”[37]
[37]T 65, L 15-18
· In relation to the cycling Mr O’Dea stated that he would look at doing less competitive races:
“I’d look at the entry lists and things like that, to see if there was like lower named riders that weren’t quite going as well to race them instead.”[38]
[38]T 66, L 23 to T 67, L 5
· He had tried to enter higher standard races such as the Bay Cycling Classic and could not finish because of back pain. His intention with cycling before the transport accident was to have raced overseas or professionally within the sport:
“Whether that was completely full time or whether that was through a small amount of part time work and then cycling as well.”[39]
[39]T 67, L 13-15
· Mr O’Dea identified persons he had raced with through junior competitions who had gone on to world championships and named one rider who was living in Europe and whose team was competing in the Tour De France.[40]
· He described his abilities in cycling as being a sprinter in road racing.[41]
· His training was restricted because of the pain accumulating in his back:
“So I end up getting to a level where I do slightly better and then I will just start going a lot worse again because I can’t train or I - the training isn’t effective either because I don’t get the recovery – or I don’t recover as fast as people without the injury…”[42]
· He would like to be doing international or Australian competition, “It’s been a dream for years.”[43]
[40]T 67, L 16-29
[41]T 68, L 3-12
[42]T 68, L 20-30
[43]T 68, L 31 to T 69, L 2
20 The plaintiff further relied on affidavits from a cycling coach, Noel Sens, the plaintiff’s mother, Kerri O’Dea, and two uncles, Bernard and Kevin O’Dea, who had been involved in cycling in the Bendigo region. None of these witnesses was required for cross-examination. The affidavits of these four witnesses were all sworn in June and July 2017 and were tendered in evidence as part of Exhibit A.[44]
[44]Exhibit A, p.17-25C
21 Understandably each of the affidavits makes reference to the plaintiff’s ability in cycling as a youth prior to the transport accident. From the particular affidavits I am able to conclude that Mr O’Dea was a promising cyclists and the consequences of the transport accident in terms of his back injury have restricted to some extent his ability to train and impacted upon his development and ultimately performance. The affidavit of Mr Sens, who had been a cycling coach but had never actually coached the plaintiff, states:
“I feel that if this accident had not occurred, especially given his background and what I knew of Sam and his talent prior, he would have had a strong chance of being a very successful cyclist. We will never know just how good he might have been. It is unfortunate that he now has to pull out of races due to back problems or not be competitive when he does participate due to his lack of training.”[45]
[45]Exhibit A, p.18[10]
22 I note also reference by the plaintiff’s mother in her affidavit to the cycling careers of two other named persons with whom the plaintiff had attended school. In particular she deposed in her affidavit as follows:
“3. From an early age, he was on a bike. He has lived and breathed
cycling for many years.
....
5. Prior to the accident, he was riding far more often. Most nights after
school, Samuel would be riding, in fact he was injured … whilst doing
an after school ride.
6. He would also do Thursday night and Sunday morning competitions,
with Bendigo Cycling Club, and a few more open meets around the
State. He was very competitive, and was participating in State level
competition.
…..
9. At school, prior to his accident, all Samuel could think about was
cycling. He had hopes of doing this professionally, or at least at a
very high competitive level. If you could go well in Bendigo, you
usually went on with it if you were passionate. Samuel would have
absolutely loved to do this. I believe at least two of Samuel’s
schoolmates, whom he used to compete with, Chris Hamilton and
Jason Lowndes, are now riding in Europe professionally.”[46]
[46]Exhibit A, p.19[3] to p.20[9]
23 The affidavit from Mr Bernard O’Dea is, in my view, of particular relevance given that he had competed at national level and was Victorian champion in track and road racing, New South Wales champion in pursuit and had won a number of handicap and scratch races, some of which are referred to in his affidavit. His affidavit refers to his knowledge of the plaintiff’s cycling ability as follows:
“5. I lived in Bendigo until around 2008 and was heavily involved with Sam
as he grew up, after the death of his father in 2002. I was particularly
involved in his cycling. He was very quick as a junior, and a natural at
sprinting. I used to go to race meetings and training with him frequently.
6. In 2008, I moved to Western Australia, but kept in touch with Sam in
relation to his cycling, and would also return to Bendigo usually for
around a month between November and January, and I wold attend
racing meetings with Sam during that time.
…..
8. Since Sam’s injury, in my various trips to Bendigo, I have seen Sam
both at training and during competition. He is nowhere near as powerful
as he used to be as a junior. He should be much more powerful now
that he is older. I particularly notice this in, say, the last quarter of a
race. It used to be a quality of Sam’s prior to his injury that he was able
to push in the last quarter and ‘kick on’ and power through when others
fatigued. This is particularly important in sprint races. He seems to
have lost this ability as a result of his back injury. … His consistency
simply is not there, which I attribute to a lack of training.”[47]
[47]Exhibit A, p.24[5] to [8]
24 The final affidavit in support is from another uncle, Kevin O’Dea, who deposes to have been a cyclist but of lesser ability to his brother Bernie. Once again the affidavit describes making observations of the plaintiff’s cycling ability, both prior to and subsequent to the transport accident. In particular the affidavit stated that subsequent to the transport accident:
“9. … he has recovered to an extent, and does now race, but he does not have the same capacity as what he would have had he not been injured, particularly for consistent training. This is absolutely required if a person wants to compete in the upper echelons of competition. He has lost a fair bit of strength, which I believe is as a result of not being able to train as much. He doesn’t seem to have the same ability to sustain effort, particularly in the last quarter of a race, which was one of the things that he was good at as a junior. He will still have a good race, from time to time, but is unable to do this consistently. When he does compete, it is nowhere near the level that he would have been at if he had not been injured.
10. At least two of the young fellows that Sam used to compete with are
now cycling in Europe. Prior to his accident, he could beat both of them.
I believe Sam could have been there with them if he didn’t suffer his
injury, or would at least have been competing at a much higher level
than he finds himself at now.”[48]
[48]Exhibit A, p.25B[9] and [10]
The medical evidence
25 The plaintiff relied upon a report from Mr Huw Williams, the treating orthopaedic surgeon, dated 25 August 2014. Medico-legal reports were provided from Dr Gregor Schutz, psychiatrist (20 December 2014), Mr Garry Grossbard, orthopaedic surgeon (17 February 2015 and 20 May 2015), Dr Ales Aliashkevich, neurosurgeon and spinal surgeon (10 April 2017) and Dr David Murphy, consultant physician in rehabilitation medicine (12 May 2017). These reports were all tendered in evidence.[49]
[49]Exhibit A, p.26-43
26 The defendant tendered a single medical report from Mr Travis Perera, dated 2 June 2017.[50]
[50]Exhibit 1, p.1-5
27 In essence, there is no real disagreement that the plaintiff suffered compression fractures of the T9 and T10 vertebral bodies in the transport accident. In my view the opinion as to prognosis expressed by Mr Perera adequately sums of the medical situation:
“The prognosis for the injuries he has sustained is reasonably good overall. His recent x-rays confirm that the compression fractures have healed and these injuries are now stable.
It is however possible that in the longer term he will continue to have some chronic back symptoms and it is difficult to predict whether these will worsen over time due to normal wear and tear and aging processes in his spine.
I am of the opinion that the injuries are likely to interfere to some degree with his ability to work. He has continued with his work as a mechanic, but he needs to be aware of the fact that he should avoid constant and heavy repetitive lifting and repetitive bending and twisting movements of the spine.
I am of the opinion that the injuries are likely to interfere with Mr O’Dea’s domestic and leisure activities for the reasons given to question c. I am further of the opinion that he is likely to have problems associated with his back for a considerable period of time.”[51]
[51]Exhibit 1, p.4-5
28 For completeness I should note that the opinion expressed in 2014 by Dr Schutz that there was no psychiatric injury is consistent with the opinions of the other medical practitioners and indeed my assessment of this case.
29 Finally, although reference was made to the absence of any report from the general practitioner, Dr Thompson, I accept the explanation given by counsel as to the difficulty of obtaining a report and I do not propose to draw an adverse inference on the failure of the plaintiff to adduce evidence from that doctor.
Analysis
30 The area of dispute between the parties in this application is limited to the question as to whether the consequences of the plaintiff’s spinal injury are sufficient to satisfy the statutory threshold for serious injury as defined in section 93(17) of the Act. Mr Moulds QC conceded that the consequences for this plaintiff could be described as significant, but were, from the defendant’s point of view, not very considerable.
31 The statutory test as to whether the consequences of a transport accident entitle the grant of leave have for many years been determined in accordance with the principles enunciated in Humphries v Poljak.[52] Any determination must largely depend upon factors of value judgment in accordance with the evidence relied upon in each particular application.
[52][1992] 2 VR 129
32 I accept the plaintiff as a reliable and truthful witness who readily conceded his participation in cycling activities subsequent to the transport accident in 2012. There is no doubt that his passion for cycling continues. The real issue in relation to this recreational activity is whether, and to what extent, the plaintiff’s true abilities have been impaired as a result of his spinal injury. Particular care must be exercised when assessing the value of lay evidence from persons other than the plaintiff on matters which must inevitably remain speculative as to the plaintiff’s pre-injury potential for a cycling career.
33 In final address on behalf of the defendant, Mr Moulds QC was critical of the absence of any direct evidence that would satisfy the court of the true extent of the plaintiff’s pre-injury potential as a cyclist. He referred in argument to Abbas v TAC[53] where leave was granted to a plaintiff who had established that a change of career path had resulted in significant pecuniary disadvantage. Mr Moulds QC argued that no evidence was available in the present case which would permit the court to reach a similar conclusion. In that regard I accept such a submission.
[53][2015] VSCA 217
34 Additionally, insofar as the application relied upon the plaintiff’s employment prospects as a motor mechanic, Mr Moulds QC submitted that the plaintiff himself had organised his work so as to minimise the impact of his back injury and there was no evidence of any present pecuniary disadvantage. Again, I accept this submission insofar as it relates to the plaintiff’s present situation.
35 I also accept that at the date of this application being heard, Mr O’Dea is still an avid cyclist and attempting to cycle recreationally and in club competitions to the best of his ability. It is clear that his passion for cycling remains. The cycling records maintained by Cycling Victoria[54] were dealt with extensively in cross‑examination. In my view the answers given by the plaintiff to the matters arising from those records satisfy me that since 2012 Mr O’Dea has only competed in one road race, being the 2016 Victorian Country Road Championships at Harcourt where he did not finish this competition. I note also that he failed to finish two criterium events in the Bay Cycling Classic in 2016 and finished in 29th position in the 2016 Tour de Bress Criterium.
[54]Exhibit 1, p.44-46
36 As against this in 2010 the records disclose that he had placed third in the Ballan to Ballarat Road Event and achieved results in three events at the Bendigo Maddison in March 2012, being two firsts and a second.
37 In my view those records support the plaintiff’s evidence that he has been particularly restricted in the road discipline where the absence of regular training is apparently of most importance.
38 Notwithstanding the defendant’s submissions, I am satisfied, particularly on the evidence contained in the affidavits of Mr Sens and those sworn by the plaintiff’s two uncles, that prior to the transport accident the plaintiff did show particular talent as a sprinter in road cycling events. I was also impressed at the plaintiff’s responses in cross-examination when questioned about his two cycling companions who had managed to progress to the professional level of cycling in Europe. The plaintiff did not, in my view, attempt to exaggerate his own abilities stating that on some days he would beat these rivals, on other days they would beat him. He did not embellish his pre‑injury potential, nor downplay the cycling performance attained following his injuries.
39 I find that the plaintiff did have potential to compete at least at the high amateur levels of cycling prior to sustaining his spinal injury. Whether or not this would have resulted in a professional cycling career is ultimately a matter of speculation. I do not make any finding as to the likelihood or otherwise of such an outcome.
40 The whole of the medical evidence satisfies me that the plaintiff is likely to have some level of pain and discomfort in his spine on a permanent basis, and I accept largely on the plaintiff’s evidence, that the consequences of this injury restrict in particular his ability to regularly train for lengthy periods as is required for the higher level cycling events, which I accept the plaintiff would have been capable of pursuing but for his injury. I am not satisfied that he would have achieved a career in professional cycling, although this may well have been a possibility for him prior to the transport accident. Noting his passion for the sport of cycling I am satisfied that his inability to compete at his pre-injury level has deprived him of a great degree of his enjoyment of his preferred recreational activity. I am also satisfied that given his present age of 23 years, he is likely to have been able to continue that recreational activity for perhaps a further 20 years into the future. This loss alone represents in my view a very significant impact upon his recreational life and is therefore a relevant matter to be considered in terms of the pain and suffering consequences of the transport accident.
41 In addition to this consequence Mr O’Dea has, in my view, suffered some restriction in terms of his employability as a motor mechanic. True it is that he has completed an apprenticeship with a Mercedes Benz dealer in Victoria, and continues in similar employment doing largely diagnostic work with Mercedes Benz Brisbane. Notwithstanding the present situation where he is able to do largely diagnostic work and avoid the heavier activities, I am satisfied that the consequences of the transport accident in terms of his spine must necessarily restrict his ability in the general labour market where heavier activities are required of motor mechanics. Thus he has suffered a loss of flexibility of employment which constitutes a “pecuniary disadvantage.”[55]
[55]Abbas v TAC [2015] VSCA 217 and State of Victoria v Glover [1998] VSCA 93 at [30]
42 I am mindful that the plaintiff is having minimal treatment for his back injury at the present time. Given his current youth and the likely duration of the consequences of his injuries it is probably very prudent medical advice that he is not reliant upon medications to a major degree.
43 I am satisfied that the combination of pecuniary disadvantage in terms of the loss of employment flexibility, coupled with the more significant impact upon his preferred recreational activity as a cyclist in combination, establishes that the consequences flowing from the injury to his spine can fairly be described as at least very considerable and more than significant or marked.
44 I therefore propose to grant leave in accordance with the provisions of section 93(17) of the Transport Accident Act.
45 I will hear the parties in relation to the formal orders sought and questions of costs.
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