O'Hara v TAC
[2016] VCC 592
•16 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01752
| JOSHUA O'HARA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 April 2016 | |
DATE OF JUDGMENT: | 16 May 2016 | |
CASE MAY BE CITED AS: | O’Hara v TAC | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 592 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious Injury – impairment to spine – psychiatric impairment
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; R J Gilbertson v Skorsis [2000] VSCA 51; Turner v Love VSC [1995] 87
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton QC with Ms M J Lang | Slater and Gordon |
| For the Defendant | Mr J Gorton QC with Ms C Spitaleri | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 The plaintiff alleges he suffered injury in a transport accident which occurred on 29 September 2011. The plaintiff was the driver of a stationary car, when it was struck forcefully from behind. The plaintiff claims to have suffered injury to his neck, lower back and psychiatric upset as a consequence of this accident.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
3 Mr R Middleton QC, appeared with Ms Lang for the plaintiff, and Mr J Gorton QC appeared with Ms C Spitaleri for the defendant.
4 The plaintiff claims an injury to his cervical spine resulting in headaches and neck pain. He requires treatment in the form of radiofrequency neurotomy procedures. He also claims an injury to his lumbar spine. The body function said to be lost or impaired is the function of the spine. This part of his application is brought pursuant to sub section (a) of the definition of “serious injury” contained in s93(17) of the Act.
5 The plaintiff also claims a Chronic Adjustment Disorder. This part of his application is brought pursuant to sub section (c) of the definition of “serious injury” contained in s93(17) of the Act.
6 Only the plaintiff was called to give evidence, and he was cross-examined. In addition, affidavits were tendered from his mother and brother, together with numerous medical reports and other documents. I have read these tendered documents, together with the transcript of the proceedings.
Relevant background
7 The plaintiff is 36 years of age and lives with his de facto partner and two young children aged two years and three months. The plaintiff had previously been married, but that relationship ended in November 2012.
8 The plaintiff is a Division 1 psychiatric nurse, having qualified in 2001. He initially worked in the public health system. He then worked for approximately two years for Growcon, providing advice and counselling to Victorian bushfire victims in the Kinglake area. He then obtained employment at the Albert Road Psychiatric Clinic, and was working there full-time at the time of the accident. In the financial year before the accident, his taxable income was $75,343.
9 Prior to the accident, the plaintiff had suffered some lower back pain when nursing his dying father in approximately 2004-2005.[1] He said the pain went away with treatment.[2]
[1]Plaintiff’s Court Book (“PCB”) 13
[2]Transcript (“T”) 17, Lines (“L”) 15-16
10 The plaintiff also suffered some neck pain and headaches following a car accident in 2004. He attended hospital at the time of this accident. He stated he made a full recovery a short period after this.
11 He attended his general practitioner, Dr S Sooknandan, in March 2010, complaining of lower back pain with sciatic pain in his left buttock and leg.[3] He was prescribed Panadeine Forte, Valium and Lyrica. The plaintiff stated the pain was tolerable. He may have had some time off work at that time.[4]
[3]Exhibit 4, Clinical notes of Dr S Sooknandan
[4]T18, L29-31, T19, L1
12 In December 2010, the plaintiff attended his general practitioner with signs of significant depression. The records from his general practitioner state:
“Poor sleep. Early morning wakening. Depressed mood. Irrational fear, Suicidal thoughts ++. Not coping emotionally, weeping. Several issues, stressful work. Wife suffering depressions – failed IVF few times, caring for terminally ill aunt? Unresolved grief issues with father’s death.”[5]
[5]Exhibit 4
13 The plaintiff denied being suicidal at that time,[6] but acknowledged there were a lot of stress factors in his life at that time. The main stress related to difficulties he and his wife had experienced whilst trying to have children, including failed IVF attempts.[7] He had high stress from his work,[8] and was also caring for his sick aunt, which brought back memories of his father’s death.[9] At the time, the plaintiff was prescribed Pristiq and Valium. After a short period he stopped taking the Valium, but he continued on Pristiq until the time of the accident.
[6]T19, L12
[7]T19, L14-28
[8]T20, L19-20
[9]T21, L1-2
14 Prior to the accident, the plaintiff claimed he was otherwise fit and well. He was in a band, playing the guitar and singing. His first band was called “The Skips”, and his later band was called “Lamp”. He said performing was his “passion”[10] and his band would perform once or twice a week.[11]
[10]T81, L1
[11]T81, L3-6
15 The plaintiff had practised martial arts for many years. He owned two horses and enjoyed horse-riding. He also had a large garden, which he would tend to. He went jogging three or four times a week and worked out in his home gym.
Accident and its consequences
16 The accident occurred on 29 September 2011, when the plaintiff was on the Boundary Road exit ramp on the Western Ring Road in West Sunshine. His car was stationary when another car hit his from behind. The impact pushed his car forward and it struck the car in front of him. The plaintiff hit his head and lost consciousness.[12]
[12]PCB 6
17 The plaintiff’s wife attended the accident scene and took him to the Sunshine Hospital. X-rays were taken and he was then discharged.
18 The plaintiff attended his general practitioner, Dr Sooknandan on 1 October 2011, and complained of neck, lower back, right shoulder and left hip pain. He was referred to an osteopath. He returned to Dr Sooknandan on numerous occasions in October and November 2011. He was eventually referred by Dr Sooknandan to musculoskeletal pain medicine specialist, Dr Steven Jensen.
19 The plaintiff first attended upon Dr Jensen on 25 November 2011 complaining of lower back, neck and right shoulder pain. Dr Jensen diagnosed the plaintiff as suffering:
“Mechanical lumbar spine dysfunction with radicular quality left leg pain. Significant cervical spine mechanical dysfunction manifesting as cervcicogenic headaches that we learned to be due to the left C2-3 and left C3-4 facet joints.”[13]
[13]PCB 55
20 Dr Jensen performed a caudal epidural injection in to the plaintiff’s lumbar spine, as well as manipulation under anaesthetic on 29 November 2011.[14]
[14]PCB 54
21 An MRI scan of the lumbar spine was performed on 5 December 2011 and showed degenerative disc disease, with a left paracentral annulus tear at L5/S1.[15]
[15]PCB 64
22 A further caudal epidural injection and manipulation procedure was performed on 16 February 2012.[16] These procedures improved the plaintiff’s leg pain.[17]
[16]PCB 54
[17]PCB 8
23 In addition to the lower back pain, the plaintiff also complained of neck pain, as well as “excruciating”[18] headaches, which he described as migrainous in nature. These headaches lasted for hours, and sometimes days.[19] Dr Jensen recorded on 18 May 2012, that his headaches were “driving him mad.”[20] Dr Jensen administered a Lignocaine injection to his spine at C2/3.[21]
[18]PCB 8
[19]PCB 8
[20]Exhibit 5, Dr Jensen’s clinical notes
[21]Exhibit 5
24 On 5 June 2012, the plaintiff returned to Dr Jensen, who recorded he was in “dire straits because his headaches are very severe at present and stopping him from doing much at all…he vomited in our toilets.. such was his state of distress.”[22]
[22]Defendant’s Court Book (“DCB”) 6
25 On 28 June 2012 and 7 July 2012, the plaintiff underwent local anaesthetic blocks in his neck. These were controlled tests to see if he would respond favourably to the nerve blocks. As he gained pain relief from the injections, the plaintiff was subsequently referred to Dr Paul Verrills.
26 Dr Verrills performed a neurotomy procedure on the plaintiff on 14 September 2012. Since that time, the plaintiff has had repeat neurotomy procedures performed on 25 October 2013, 2 February 2015 and 27 November 2015.
27 The plaintiff received two further epidural injections into his lumbar spine. These were performed by Dr Jensen on 3 December 2012 and 18 February 2015.
28 The plaintiff remained off work for a period of approximately eight months after the accident. He returned on a graduated Return to Work Program over a 12-week period.[23] He then resumed full-time duties in early September 2012. He then took some days off work due to pain, and he also required time off before the neurotomy procedure.[24]
[23]T33, 28-29
[24]PCB 10-11
29 After the accident, the plaintiff’s psychiatric condition deteriorated and he felt he was depressed.[25] His marriage broke up in November 2012.
[25]PCB 11
30 The plaintiff said that he struggled with full-time employment, and that in November 2012 he reduced his hours to 30.6 hours per week.[26] He said this decision was in part due to the neck and back pain, but also due to his emotional and relationship issues.[27]
[26]PCB 11
[27]T34, L24-30
31 In March 2013, the plaintiff was involved in an incident with an adolescent client who tried to assault him. He had to put his client in a hold and wait sometime for someone to come and assist him. The plaintiff said he felt terrified during this incident. In cross-examination he explained his reason for stopping work at this time:
“It was because you felt vulnerable?‑‑‑It was more than just feeling vulnerable.
Yes, you felt ‑ ‑ ‑?‑‑‑I was – I was in fear of the headaches returning again. I couldn't do the role to the way that I had. I couldn't complete the tasks to the way that I had.
In what way couldn't you complete the tasks?‑‑‑I was a very good nurse. I was – I was really good at what I did.
In what way couldn't you complete the tasks?‑‑‑There was a young lady in front of me who was in distress who I was unable to deescalate.
But you did deescalate her, didn't you, in the sense that you held her until help came?‑‑‑It shouldn't have gone to that.
What should you have done on that occasion that you didn't do?‑‑‑I could have been able to talk her down. I would have been able to stay after help had arrived.
I didn't catch that last bit?‑‑‑Stay after help had arrived.
Yes?‑‑‑Been able to call and be succinct with doctors.
What I am trying to get at is what we are talking about is you coping at the job from an emotional point of view, not from a physical point of view?‑‑‑They are both hand in hand. If – emotionally, yes, I was – I was at the end of my tether. I tried to get back to work for – three – three attempts to get back to work and I knew that I couldn't keep up with it.
Emotionally, you are at the end of your tether when this happened, correct?‑‑‑Emotionally, I was – yeah, I was.
Because you had your neck injury and your wife had left you and you had the depression you had even before the accident?‑‑‑And I was waiting for the neurotomy to wear off.
Waiting for the neurotomy?‑‑‑I'm ‑ ‑ ‑
But it's not like – I'm perhaps labouring this, but it's not like your neck pain got worse so you couldn't go to work anymore. It was more your understanding of your ability to cope with the job that caused you to take yourself off work?‑‑‑I – yes, I can no longer cope with the job.
Yes, but ‑ ‑ ‑?‑‑‑I can no longer cope with the job and I ‑ ‑ ‑
Emotionally, but ‑ ‑ ‑?‑‑‑And I – I was frightened of the physical dangers of the job now for the first time.
In terms of physically performing the duties, you were able, physically, to do it?‑‑‑Not if I had have had a code blue. If ‑ ‑ ‑
Not if something else happened, but in terms of what had happened to you ‑ ‑ ‑?‑‑‑No, sir, you can't say it like that because that's the nature of the job. Every day that you go in there is completely different.”[28]
[28]T45, L6-30, T46, L1-22
32 The plaintiff acknowledged that his emotional state was also a factor in him stopping work. He explained that from his perspective, the physical restrictions and emotional state were “hand in hand.”[29] He acknowledged that he stopped work without consulting his doctors.
[29]PCB 15
33 The plaintiff remained off work from March 2013 until November 2015. He then obtained a part-time position as a community care worker, with Southern Cross Care. He continues in this role and is currently paid $22 an hour, and works 25 hours a week.[30]
[30]T60, L16-17
34 In May 2013, he was referred to psychiatrist, Dr Mark Schiff. The plaintiff saw him on a fortnightly basis and was prescribed numerous medications, including Pristiq.
35 The plaintiff attended an 18 week outpatient pain management program at the Epworth Hospital where he consulted a physiotherapist, psychologist, and occupational therapist. He said it was an holistic approach to treatment and he considered it a turning point for him.[31] He felt more positive about his future and he learnt strategies to help him deal with his pain.[32]
[31]T50, L26-31
[32]T51, L26-28
36 The plaintiff suffered side-effects when taking Pristiq. In June 2015, he experienced auditory and visual hallucinations, as well as an altered sensation in his face. He attended the Footscray Hospital, and was later transferred to the Sunshine Hospital’s Neurology Department. He was diagnosed with conversion disorder. The plaintiff describes this as a terrible time for him.[33]
[33]T30, L25-27
37 Soon after, the plaintiff attended psychiatrist Dr Sayed Assadi. He saw Dr Assadi on two occasions. Dr Assadi altered his medication and prescribed Lexapro.[34]
[34]Exhibit 3
38 The plaintiff still suffers some panic attacks. His last attack occurred one month ago, and was brought on by an incident with a car.[35] He had a further attack two months ago, when a group of aggressive young men entered a local shop seeking to create trouble.[36]
[35]T70, L12-15
[36]T70, L20-28
39 The plaintiff has not consulted a psychiatrist or psychologist since June 2015. In cross-examination, when asked if he was coping without regular psychiatric or psychological treatment, he answered “I feel that I have been doing well.”[37] He continues to take Lexapro.
[37]T58, L16-17
40 He also takes three Panadol Osteo and four Nurofen each day.[38]
[38]PCB 16
41 The plaintiff stopped playing in his band in early 2013.[39] He explained that he found it too hard to carry his guitar, and that it hurt his neck and back. In order to perform as a singer, the plaintiff said he needed to take alcohol and medication to get through an act. His singing is now limited to making up songs for his two young daughters.[40] At home, he plays his guitar with one finger and sitting down.[41]
[39]T80, L28
[40]T56, L23-28
[41]T57, L1-4
42 The plaintiff has not returned to jogging.[42]
[42]PCB 18
43 The plaintiff attempted to return to martial arts in 2015 and 2016. His pain increased and he was not able to get through the training sessions.[43]
[43]T82, L4-7
44 The plaintiff has not been able to return to horse-riding. He is saddened that he will not be able to be involved in horse-riding with his daughters as they grow up.[44]
[44]PCB 18
45 In addition to the evidence provided by the plaintiff, his mother and brother also provided affidavits saying they observed him in pain on a regular basis.[45]
[45]PCB 20 -22
Plaintiff’s medical material relating to his physical injuries
46 The plaintiff has been treated by Dr Jensen since November 2011.
47 The plaintiff relied upon several reports from Dr Jensen, as well as several letters which were tendered by the defendant. In his report dated 8 May 2015, Dr Jensen detailed the plaintiff’s condition and noted that his headaches had responded positively to the radiofrequency neurotomy procedures, and that his leg pain had responded well to the caudal epidural injections.[46] Dr Jensen thought the plaintiff would require repeat radiofrequency neurotomies in the future, and may require repeat caudal epidural injections, as well as ongoing analgesic and psychotropic medication.[47]
[46]PCB 68
[47]PCB 69
48 In terms of his work capacity, Dr Jensen considered that from a purely physical perspective, the plaintiff had the capacity to pursue his duties as a psychiatric nurse provided he was graduated back into this role.[48]
[48]PCB 69
49 The plaintiff’s solicitor arranged for him to be examined by neurosurgeon Mr Paul D’Urso, in June 2015. In his report dated 1 July 2015, he stated that the plaintiff appears to suffer from “chronic muscular ligamentous pain in his cervical and lumbar regions,”[49] resulting in “secondary occipital neuralgic headache.”[50] He further noted that the plaintiff “developed a substantial adjustment disorder, depressed mood and anxiety,”[51] and that “nonorganic factors appear to have contributed to the majority of his disability.”[52] He considered the prognosis of the condition is “likely to be satisfactory,”[53] and recommended a multidisciplinary rehabilitation program, with a strong emphasis on psychological counselling and pain management techniques.[54]
[49]PCB 27
[50]PCB 27
[51]PCB 27
[52]PCB 27
[53]PCB 27
[54]PCB 27
50 Mr D’Urso considered the plaintiff had “limited capacity for employment.”[55] He was hopeful that, following a multidisciplinary rehabilitation programme, there would be an opportunity for the plaintiff to return to duties as a psychiatric nurse, but anticipated “part-time light employment would be possible in the foreseeable future, with a graduated increase in hours and intensity of employment with time.”[56] Mr D’Urso further noted that the plaintiff appeared to have “mild restriction in social, domestic and leisure activities”[57] and that he did not have capacity to perform unrestricted physical, manual gardening or cleaning activities, or vigorous recreational sporting activities.
[55]PCB 27
[56]PCB 27
[57]PCB 27
51 The plaintiff’s solicitors also arranged for him to be examined by orthopaedic surgeon, Mr Paul Kierce, who initially examined the plaintiff in September 2012. In his report dated 19 September 2012, he considered the plaintiff suffered a soft tissue injury to his cervical spine and aggravated lumbar spondylosis.[58] He felt that due to the injury to his lumbar spine, the plaintiff “should not be placed in areas where there is a potential for assault.”[59]
[58]PCB 74
[59]PCB 81
52 Mr Kierce re-examined the plaintiff on 30 September 2015. At this time, he noted the plaintiff continued to suffer a soft tissue injury to his cervical spine and aggravation of lumbar spondylosis.[60] As to work capacity he said:
“From a purely physical viewpoint, he would be able to work as a psychiatric nurse as long as he was not involved in the care of violent patients. He would only be able to work in an administrative role and his face to face involvement with clients would have to be carefully monitored.”[61]
[60]PCB 92
[61]PCB 92
53 He considered the plaintiff was unfit for any manual work.[62]
[62]PCB 92
54 In terms of his ability to undertake work as a carer, Mr Kierce was of the opinion the plaintiff could carry out such work, provided it did not involve:
“prolonged or frequent bending, the lifting of weights more than 15kg, the use of heavy jarring implements such as picks, shovels or crowbars, the driving of machinery which give rise to vibrations or any significant pushing or pulling, perhaps of heavy clients in wheelchairs.”[63]
[63]PCB 93
55 Mr Kierce accepted the plaintiff needs radiofrequency cervical neurotomies, as well as lumbar epidural injections.[64]
[64]PCB 93
56 The plaintiff was also examined by occupational physician, Dr Joseph Slesenger, in October 2015. In his report dated 31 October 2015, Dr Slesenger noted the plaintiff’s neck and lower back injuries. At that time, the plaintiff had just commenced work as a community care worker and Dr Slesenger considered that “from the position of his occupational disability, his end point is unclear.”[65] He considered that the plaintiff was working in a supportive environment, and that he anticipated increasing his work activities to 20 hours per week, but noted that it “remains to be seen” whether this increase would aggravate his symptoms and whether he would be able to maintain this level of function.[66]
[65]PCB128
[66]PCB 128
Defendant’s medical material relating to the plaintiff’s physical injuries
57 The defendant’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Michael Dooley, in July 2013. Mr Dooley considered the plaintiff suffered soft tissue injuries to the cervical and lumbar spine regions as a result of the accident. [67] He noted that the symptoms in relation to the lumbar spine had been less significant than those in relation to the cervical spine.[68] He considered that the plaintiff had maintained a good range of lumbar spine motion, and that there was no evidence of objective neurological deficit affecting the lower limbs.[69] Mr Dooley expected the plaintiff to suffer some ongoing intermittent cervical and lumbar spine pain.[70] He felt he was fit to return to his work as a psychiatric nurse if he had a further neurotomy procedure and could reduce his medication. He noted that the plaintiff “would not be able to engage in regular active impact leisure pursuits such as martial arts, horse riding etc,”[71] but could engage in low-impact fitness pursuits and a range of light household duties.[72]
[67]DCB 48, 54
[68]DCB 48
[69]DCB 48
[70]DCB 49
[71]DCB 49
[72]DCB49
58 The plaintiff was re-examined by Mr Dooley in February 2016. He re-confirmed his diagnosis of soft tissue injury to the cervical and lumbar spine, and expected the plaintiff would suffer ongoing intermittent cervical spine pain, as well as some occasional lower back pain.[73]
[73]DCB 55
59 In relation to his work capacity, Mr Dooley noted that the plaintiff had not returned to work as a psychiatric nurse. He recorded that the plaintiff’s reasons were that he was worried about working with medication, and potentially making a mistake; and that he was also worried he would not cope in situations where patients became aggressive. He noted that the plaintiff was working as a community carer in “overall low key work”, and that he worked 25 to 30 hours per week. Mr Dooley did not comment on whether he considered the plaintiff had the capacity to do more hours, or whether such work was more suitable for him, than working as a psychiatric nurse.
Plaintiff’s medical material relating to his psychiatric injury
60 The plaintiff received treatment from Dr Schiff from May 2013 until December 2014.
61 In a letter to the defendant dated 5 May 2013, Dr Schiff stated that, due to his “intimate knowledge of psychiatric nursing in private or public hospitals”[74], he considered the plaintiff “will never be able to return to his pre-existing work as a psychiatric nurse” [75] and a Unit Manager or Night Shift Manager.
[74]PCB 95
[75]PCB 95
62 He noted the plaintiff was “very keen to be trained and his preferred training was in the field of woodwork, pre-apprenticeship/apprenticeship as a cabinet maker.”[76]
[76]PCB95
63 He further noted that the plaintiff had been coming across:
“as a man who has incredibly high work ethic who is very highly motivated indeed to return to some work after vocational training despite not being fully recovered both physically and certainly psychologically.”[77]
[77]PCB96
64 In his report dated 25 February 2016, Dr Schiff detailed the treatment and medication he had prescribed the plaintiff. He considered that when he last saw the plaintiff in December 2014, he was suffering “symptoms of mood disorder with significant secondary panic/anxiety post traumatic seizures.”[78] He was of the view that he was a severely disabled man.
[78]PCB 98
65 In relation to his work capacity, Dr Schiff considered the plaintiff was highly motivated to return to work, but noted “at this time it was hard to imagine how he could come back to any employment even if it was not stressful at all, due to a combination of his physical suffering and severe psychiatric symptoms.”[79]
[79]PCB 98
66 The plaintiff also received treatment from Dr Assadi in June 2015. He diagnosed the plaintiff as suffering persistent depressive disorder, and a generalised anxiety disorder.[80] He only saw the plaintiff twice. In his letter to the plaintiff’s general practitioner, he did not comment on the plaintiff’s work capacity, and noted that at that time the plaintiff was the full-time carer for his daughter.
[80]Exhibit 3
67 The plaintiff’s solicitors arranged for him to be examined by psychiatrist, Dr Nathan Serry, in September 2012 and then again in November 2015. In his most recent report dated 7 December 2015, he described the plaintiff as “very pleasant and cooperative,”[81] and a “clear and straightforward historian.”[82] He noted that his psychiatric illness had “fluctuated in intensity and severity over time,”[83] and that “over recent months, there has been a substantial improvement”[84] in the plaintiff’s clinical status. Dr Serry considered that the plaintiff’s anxiety and depression had diminished.[85] He further noted that the plaintiff has “residual traumatisation features although not at present a full-blown PTSD.”[86]
[81]PCB 114
[82]PCB 114
[83]PCB 115
[84]PCB 115
[85]PCB 115
[86]PCB 115
68 Dr Serry considered that the plaintiff’s prognosis remained somewhat mixed,[87] and noted that upon altering his antidepressant medication eight or nine months ago, “there has been a commensurate and substantial improvement in his clinical condition.”[88] He commented that the plaintiff had to relinquish his career as a psychiatric nurse,[89] but did not state that this was due to his psychiatric condition.
[87]PCB 117
[88]PCB 117
[89]PCB 117
Defendant’s medical material relating to the plaintiff’s psychiatric injury
69 The defendant arranged for the plaintiff to be examined by psychiatrist, Dr Brendan Hayman, in January 2013. At that time, Dr Hayman considered that the plaintiff had developed a Post-Traumatic Stress Disorder, and a Chronic Adjustment Disorder with depressed and anxious mood, both consequent to the motor vehicle accident.[90]
[90]DCB 28
70 In relation to his work capacity, Dr Hayman considered the plaintiff “is quite limited in his capacity to return to work,” suspecting that “he could only do 20-30% hours/duties.”[91] At this time, Dr Hayman could not anticipate a date of return to full accident employment.[92] Dr Hayman considered the plaintiff appeared genuinely motivated to return to work, and that with appropriate treatment, envisaged that with time this would be fully achievable.[93]
[91]DCB 29
[92]DCB 29
[93]DCB 30
71 The defendant then had the plaintiff examined by psychiatrist, Associate Professor Peter Doherty, in March 2016. He referred to the plaintiff’s significant deterioration in his psychiatric state in mid-2015. He noted that the plaintiff had since settled in to employment, which he was enjoying, that he was in a relationship that was going well, and that he had two children who were making him happy. Associate Professor Doherty diagnosed an adjustment disorder with anxious mood and features of traumatisation that were currently mild.[94] He considered the plaintiff’s prognosis was very good. He also considered his psychiatric condition did not interfere with his ability to work.
[94]DCB 69
Long term
72 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and long-term. The authorities have defined the latter to mean “for the foreseeable future”. I am satisfied that the plaintiff’s impairment to the spine and psychiatric impairment are both long-term.
73 The plaintiff has suffered pain in his neck and lower back, together with headaches for over five years. It is a soft tissue injury to the cervical spine and lumbar spine. He requires ongoing neurotomy procedures to assist in relief of these headaches and neck pain. He has also required caudal injections for his back pain and may require more in the future. I am satisfied these injuries and the consequences which flow from them are long-term.
74 In relation to his psychiatric condition, the plaintiff continues to take anti-depressant medication and, until June 2015, had regularly received psychiatric and psychological treatment. The psychiatrists who have examined him accept he has an ongoing psychiatric condition. I am therefore satisfied that his psychiatric injury and the consequences which flow from it are long-term.
The plaintiff’s credibility
75 I found the plaintiff to be an honest witness. He gave evidence in a simple, straightforward and believable manner. He did not overstate things and made concessions where appropriate. He conceded his lower back pain was under control at the moment.[95] He spoke about how he enjoyed his current job[96] and that he hoped to return to full-time work.[97]
[95]T72, L20
[96]T72, L23
[97]T52, L17-18
76 The defendant’s primary attack on the plaintiff’s credit was in relation to video footage of him performing at three musical performances.[98] These performances were in March 2012, on or before 23 June 2012 and on or before 27 June 2012.
[98]Exhibit 2
77 The video showed the plaintiff singing on stage with his band called “Lamp”. In each gig, he was dancing around, moving his lower back and neck freely. On numerous occasions he would thrust his neck, back and forward, to the beat of the music. The plaintiff explained that for each performance he had taken prescription medication and consumed large amounts of alcohol.[99] At one performance, he drinks from a large glass, which he said contained vodka and water.[100]
[99]T37, L3-16
[100]T79, L27-28
78 Mr Dooley was shown the video and considered it inconsistent with the injuries claimed.[101] In a supplementary report dated 23 March 2016, Mr Dooley noted that “on the DVD he was able to put his cervical spine through a range of motion greater than that of formal examination.”[102] Mr Dooley stated that in his general experience, “someone complaining of constant ongoing neck pain and headache would not be performing rapid movements of their neck etc such as those noted on the DVD.”[103]
[101]DCB 58
[102]DCB 58
[103]DCB 58
79 Dr Jensen was also shown the video and he, too, considered the gyrations inconsistent with someone suffering significant neck or back pain.[104] However, he commented that the movements would be possible if the plaintiff had either a facet joint injection prior to the gigs, or if he had taken significant doses of medication.[105] I accept the latter was the case for each performance, and further that the plaintiff also consumed alcohol to help him get through.
[104]PCB 71
[105]PCB 72
80 In cross-examination, the plaintiff described his performances as terrible. He said he got the words wrong to his own songs.[106] He considered it disgusting to have performed drunk in front of children at one of the performances.[107] He said the only way for him to perform was to be drunk and that meant performing was no longer enjoyable.[108] I accept the plaintiff’s evidence in relation to this, and conclude, that the performances do not contradict the plaintiff’s claim that he is no longer able to perform in his band because of his neck and lower back injury.
[106]T80, L16-19
[107]T81, L18-20
[108]T81, L13-24
Plaintiff’s physical injury
81 The plaintiff requires regular neurotomy procedures, which to date have been performed every 10-15 months.
82 The neurotomy is a day procedure, involving a general anaesthetic. The plaintiff described the procedures as painful, with him suffering pain and swelling in his neck at the site of the injection for a few weeks after it.[109] The headaches ceased from the time he woke from the anaesthetic.[110]
[109]T49, L22-28
[110]T50, 4-5
83 The plaintiff said the neurotomies were most helpful in relation to the headaches, but that he also got some relief from his neck pain. The effectiveness of the neurotomies has varied, from six months to a year.[111] Dr Jensen commented that the plaintiff’s outcome results in respect of his neck pain and headaches, were consistent with expected published outcome studies.[112]
[111]T50, L10-14
[112]PCB 72
84 When the neurotomy wears off, the plaintiff said that he has to go back to taking high doses of medication.[113] He then describes his pain levels in his neck as 5, 6 or 7 out of 10 and his headaches as a 9 or 10 out of 10.[114]
[113]T15, L7-11
[114]T83, L6-10
85 Mr Gorton accepted that these neurotomies were related to the accident and were a consequence for me to consider. However, Mr Gorton focused on the plaintiff’s “treated state”, submitting that as the outcome from a neurotomy was so good, the plaintiff’s disability was minimal. However, this ignores the plaintiff’s state when the neurotomy wears off. At that time the plaintiff’s headaches and neck pain return. He then suffers intense pain, and needs to significantly increase his medication. I accept the consequences in relation to the effect of the neurotomies, including when they wear off, to be very considerable.
86 The plaintiff does not believe he can return to work as a psychiatric nurse because of his physical and psychiatric impairments. To the extent that his incapacity to perform his pre-injury duties involves an overlap between his physical and psychiatric injuries, in assessing his capacity for work, I cannot combine these impairments. It is necessary for me to look at each separately.
87 In relation to his physical impairment, the plaintiff was concerned he would be at risk of an assault.[115] Further, he was concerned he would not be able to respond adequately to emergency codes, called from time-to-time in the hospital. The codes, while unpredictable, can occur on a daily basis.[116]
[115]T46, L14-16, T53, L18-18
[116]T46, L16-18, T56, L4-13
88 In cross-examination, the plaintiff explained why he considered himself to be more suited to his current job as a community care worker, than to his previous job as a psychiatric nurse:
“Presumably you had more fears and concerns in the
psychiatric nurse job than you do in the community care
nurse job?---Yes.
So in the current job you have where you don't have the
concerns about being assaulted or having to restrain
someone, do you feel more comfortable in that
position?---I feel much more comfortable in the job
that I'm in now.”[117]
[117]T60, L24-31
89 Mr Kierce accepted the plaintiff’s concerns in relation to being assaulted by violent patients.[118] Mr Kierce commented that he would be able to return to work in an administrative role, where his face-to-face involvement with clients was carefully monitored.[119]
[118]PCB 92
[119]PCB 92
90 Dr Jensen, Mr D’Urso and Mr Dooley all considered the plaintiff capable of returning to his pre-injury duties, but none commented on whether it would be acceptable to expose the plaintiff to the risk of physical assault by a violent patient. Dr Jensen and Mr D’Urso had not seen the plaintiff since he obtained work as a community care worker. It is unknown whether they would consider this work more suitable for the plaintiff, as it does not expose him to the risk of physical assaults. Mr Dooley, although aware of the plaintiff’s current employment, does not comment on whether he considers it to be more suitable than his pre-injury employment.
91 Whether in the public or private health system, psychiatric patients can be unpredictable and at times, violent. The restrictions which Mr Kierce suggested cannot necessarily be guaranteed. The plaintiff genuinely believes he would be vulnerable to physical assaults if he returned to work as a psychiatric nurse. Given his existing impairment to his spine, I consider it reasonable for the plaintiff to want to avoid this risk.
92 I therefore conclude that due to his physical impairment, the plaintiff is unable to return to his pre-injury employment.
93 The plaintiff currently works 20 hours a week as a community care worker. He remains hopeful that he can increase his hours, to full-time. His current rate is $22 an hour. If he was to work 40 hours a week, his full time annual gross earnings would be $45,760. This is significantly less than the $75,000 gross income he was earning at the time he was injured. I therefore accept that the plaintiff suffers pecuniary disadvantage as a consequence of the impairment to his spine.
94 The plaintiff has some hope of working as a cabinet maker. To do this, he would need to obtain a certificate in cabinet making and complete an apprenticeship.[120] It is simply a hope for his future at this stage[121] and in those circumstances, I consider it too speculative for me to consider further.
[120]T52, L12-26
[121]T53, L1-2
95 In addition to the neurotomies, and his pecuniary disadvantage, I accept that the plaintiff suffers the following consequences:
· He usually takes three Panadol Osteo and four Nurofen each day.[122]
[122]PCB 16
· In addition to the neurotomies, the plaintiff also requires regular caudal injections into his lumbar spine and may require these in the future.
· He no longer plays in his rock band. I accept carrying the guitar is painful for his neck and back. I also accept that it is too painful for him to sing and perform without being heavily intoxicated. He can sing to his children now and play his guitar when sitting down, but this is very different to the pleasure he got performing in a rock band.
· He can no longer ride horses. When his children are older, he will be not be able to enjoy this activity with them.
· He no longer goes jogging.
· He no longer works out in his gym.
· He no longer does martial arts.
96 The plaintiff claims the break-up of his marriage as a consequence of his accident.[123] There is no affidavit from his ex-wife about this. I accept he was anxious and depressed after the accident, and that his lowered mood may have been a factor in the break-up. But in circumstances where the plaintiff and his wife had problems with having children, where they had been unsuccessful on IVF and where his ex-wife was suffering depression before the accident,[124] I am not satisfied the marriage break-up is related to the accident. However, there is no significance in this finding, given the other consequences I accept arise as a consequence of the accident.
[123]PCB 14
[124]Exhibit 4 – note of Dr Sooknandan dated 10 December 2010
97 When looking at the plaintiff’s impairment to the spine, when judged by comparison with other cases in the range of possible impairments or losses, I am satisfied that the consequences for the plaintiff are at least very considerable.
Plaintiff’s psychiatric condition
98 As the plaintiff suffered a psychiatric condition before the accident, there must be a comparison between the plaintiff’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[125] I must consider only the consequences arising from the aggravation.
[125][1994] 1 VR 436
99 In R J Gilbertson v Skorsis,[126] Chernov JA summarised the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a “serious injury”, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”
[126][2000] VSCA 51 at paragraph [40]
100 The plaintiff was taking anti-depressant medication before the accident, but had not been referred to a psychiatrist or psychologist. He was working full time as a psychiatric nurse. I therefore consider his psychiatric condition at that time was mild, and caused him minimal impairment.
101 Since the accident, the plaintiff’s psychiatric state has fluctuated. Mr Middleton described it as a “roller-coaster”.[127] He was at his worst in June 2015 when he suffered auditory and visual hallucinations and was suicidal.[128] His medication then changed from Pristiq to Lexapro. He remains on this medication.
[127]T124, L20
[128]T29, L19-29
102 Mr Middleton focused on the side effects the plaintiff suffered in June 2015. He referred me to the judgment in Turner v Love, [129] where Ashley and Hedigan JJ commented that:
“…for the purposes of s.93(17)(c), the consequences of psychiatric injury for an injured person should not be confined to symptoms which it directly produces. Those consequences should include the need for treatment, its type and frequency, and any past or future potential side-effects it might have. So, it might be that treatment would in some cases be the principal long-term consequence of psychiatric injury. Thus a patient with a depressive illness might be symptomatically well provided that he or she regularly underwent a course of electroconvulsive therapy, which caused memory loss; or the patient might be free of the symptoms of a depressive illness but subject to symptoms and disabilities which were side effects of medication used to relieve symptoms of the psychiatric condition.” [43]
[129]VSC [1995] 87 at 43
103 In assessing whether the plaintiff suffers a serious injury, I must consider the consequences he is suffering now. In 2015 he was in a very bad way psychiatrically, when he suffered adverse consequences to the medication he was on. However, with a change in medication, he is now much improved.
104 The plaintiff has seen two medico-legal psychiatrists in the last six months. Dr Serry considered his prognosis is mixed and noted a substantial improvement in his clinical condition.[130] Professor Doherty considered his prognosis to be very good.[131]
[130]PCB 117
[131]DCB 69
105 The plaintiff’s psychiatric state played a role in him stopping work in March 2013. From a psychiatric perspective, the plaintiff feels he is not as sharp and focused as he would need to be to return to work as a psychiatric nurse.[132] He feels he would have difficulties reading and writing clinical notes.[133] However, these perceived limitations have not been tested. His psychiatric prognosis is positive. I am therefore not satisfied that, for the foreseeable future, these restrictions would prevent him performing his pre-injury duties as a psychiatric nurse.
[132]T68, L18-27
[133]T68, L4-10
106 When comparing the plaintiff’s psychiatric condition prior to, and following, the accident, I am not satisfied that the consequences of any aggravation are severe. He was on medication before the accident, and is still on it now. He finds the Lexapro beneficial.[134] His current mood is optimistic and he is happy in his relationship and enjoying time with his young children. I accept the plaintiff still suffers some panic attacks, but these do not stop him doing things, such that he still drives his car and is active with his family.
[134]T 75, L 22
107 When his psychiatric condition is judged by a comparison with other cases in the range of possible mental or behavioural disturbances, I am not satisfied he satisfies the requirements of the definition of “serious injury”.
Orders
108 The plaintiff’s application for leave to commence a claim for common law damages succeeds. I shall make consequent orders.
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