Olalla v TAC
[2023] VCC 252
•28 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04443
| RICHARD OLALLA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2022 | |
DATE OF JUDGMENT: | 28 February 2023 | |
CASE MAY BE CITED AS: | Olalla v TAC | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 252 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Motor vehicle accident – pain and suffering and pecuniary disadvantage - whether aggravation injury that is serious
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries & Anor v Poljak [1992] 2 VR 129; Gennimatas v TAC (2002) 5 VR 552; Rowe v TAC [2017] VSCA 377
Judgment: Application for leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Mr C Farinaccio | Carbone Lawyers |
| For the Defendant | Mr P Elliott KC with Mr S Pinkstone | HWL Ebsworth Lawyers |
HIS HONOUR:
1The plaintiff seeks leave to commence a proceeding at common law to recover damages for injuries he suffered in a transport accident on 23 June 2019. He makes his application pursuant to the provisions of the Transport Accident Act 1986 (“the Act”) and he relies upon paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act.
2The plaintiff was represented by Ms Pilipasidis of Senior Counsel, with
Mr Farinaccio of junior counsel. The defendant was represented by Mr Elliott of Kings Counsel and Mr Pinkstone of junior counsel.3By the commencement of the hearing, the plaintiff had not filed the particulars of injury as required by directions made on 6 June 2022. It is necessary in the determination by the Court of an application for the grant of a serious injury for a claimant to identify the impairment to body function and the injury or injuries relied upon as caused by a transport accident. Ms Pilipasidis expressed them this way:
“It's been put as an aggravation of a pre-existing spondylolisthesis affecting the L5-S1 pars defect.”[1]
[1] Transcript (‘T’) 121, Line (‘L’) 28-30.
4Put another way, and regarding paragraph (a) of the definition of serious injury, the injury relied on is an aggravation of a pre-existing degenerative condition of the plaintiff’s spine with the spine being the body function associated with the injury.
5In the plaintiff’s opening Ms Pilipasidis also implicated the transport accident as having caused a new injury. Ultimately, and in the course of final address, reliance on a new injury was abandoned[2] and the application was addressed on the foundation that the transport accident caused an aggravation to a pre-existing condition of the spine which has wrought consequences that are serious to the plaintiff in terms of pain and suffering and loss of earnings. If I am satisfied that the transport accident caused injury, then the approach to be adopted in an aggravation-type injury is in accordance with the principles expressed in Petkovski v Galletti[3] as follows:
“…where the case was one of aggravation of a pre existing condition, the applicant must establish what injury was caused by the accident. An analysis must be made of the extent of the impairment of a body function before and after the relevant injury, and the additional impairment must of itself involve serious long-term impairment of a body function.”[4]
[2] T116, L25-29.
[3] [1994] 1 VR 436.
[4]Ibid 443.
6The meaning of “serious” expressed in s97(17) of the Act has been addressed in the following way in Humphries & Anor v Poljak[5]:
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[6]
[5] [1992] 2 VR 129.
[6] Ibid 140.
7As explained in the extract from Humphries, a determination of the seriousness of any pecuniary disadvantage the plaintiff has suffered as a result of a transport accident is to be assessed in combination with and not separately from any pain and suffering consequences.
The issues joined
8Mr Elliott explained that the Commission opposed the grant by the Court of a serious injury certificate because it does not accept that the plaintiff has proved he suffered injury because of the transport accident. Mr Elliott further said that if I am satisfied the plaintiff did suffer injury caused by the transport accident, then the Commission’s contention is that the evidence is insufficient to establish that on the balance of probabilities it had caused an aggravation to the pre-existing state of the spine that was more than significant or marked and hence, very considerable. I can address this argument in short compass. If I am satisfied that the plaintiff suffered injury caused by the transport accident, then on the evidence of the consequences that have flowed, the veracity of which was not challenged by the respondent, I would be satisfied that the injury meets the test for seriousness in that there is a marked divergence between the extent of capacity and engagement in a suite of activities that was capably undertaken by the plaintiff prior to the accident, despite the state of his pre-existing back, by comparison to his circumstances since the accident.
The documentary evidence
9The plaintiff tendered the following evidence in support of his application:
·Affidavit of Richard Ollala dated 03 February 2022[7] and Further Affidavit of Richard Olalla dated 04 November 2022;[8]
[7] Exhibit P1, Plaintiff Court Book (‘PCB’) 3-9.
[8] Exhibit P1, PCB 10-12.
·Radiology including:
oX Ray - Lumbosacral Spine and Pelvis dated 11 January 2017;[9]
[9] Exhibit P2, PCB 13-13.
oCT - Lumbar Spine dated 17 January 2017;[10]
[10] Exhibit P2, PCB 14-14.
oCT - Lumbar Spine dated 30 November 2019;[11]
[11] Exhibit P2, PCB 15-15.
oMRI - Lumbar Spine dated 30 December 2020;[12] and
[12] Exhibit P2, PCB 16-16.
oX Ray and CT - Lumbar Spine dated 02 February 2021;[13]
[13] Exhibit P2, PCB 17-18.
·Patient Care Record dated 23 June 2019 and 03 July 2019;[14]
·Western Hospital Admission dated 03 July 2019;[15]
·Reports of Mr Harish Murthy (Physiotherapist) dated 21 August 2019,[16] 5 February 2021[17] and 19 September 2022;[18]
·Reports of Mr Gurish Nair dated 28 January 2021,[19] 25 February 2021,[20] 25 February 2021[21] and 4 January 2022;[22]
·Report of Dr Jitesh Sikka (General Practitioner) dated 23 November 2022;[23]
·Reports of Dr Mohammed Awad (Neurosurgeon) dated 27 September 2022,[24] 26 November 2022[25] and 26 November 2022;[26]
·Summary of Plaintiff’s Taxation Returns;[27]
·Email from AMP Workcare to TAC dated 4 February 2021;[28] and
·Affidavit of Jesus Olalla dated 28 November 2022.[29]
[14] Exhibit P3, PCB 24-27.
[15] Exhibit P3, PCB 28-28.
[16] Exhibit P3, PCB 29-29.
[17] Exhibit P3, PCB 30-31.
[18] Exhibit P3, PCB 32-35.
[19] Exhibit P3, PCB 36-37.
[20] Exhibit P3, PCB 38-38.
[21] Exhibit P3, PCB 39-39.
[22] Exhibit P3, PCB 40-40.
[23] Exhibit P3, PCB 41-42.
[24] Exhibit P4, PCB 43-47.
[25] Exhibit P4, PCB 48-48.
[26] Exhibit P4, PCB 51-51.
[27] Exhibit P5, PCB 49-49.
[28] Exhibit P6, PCB 50-50.
[29] Exhibit P7, PCB 52-54.
10The defendant tendered the following evidence in opposition of the application:
·Progress Notes extracted from Resolve Medical Centre Melton subpoenaed records for attendances from 16 January 2017 to 30 January 2019;[30]
[30] Exhibit D1, Defendant Court Book (‘DCB’) 3-12.
·Radiology of CT lumbar spine dated 16 June 2003;[31]
[31] Exhibit D2, DCB 13-13.
·Referral to Girish Nair Neurosurgeon dated 19 January 2017;[32]
[32] Exhibit D3, DCB 17-19.
·Report of Girish Nair to Dr Sikka dated 7 June 2017;[33]
[33] Exhibit D4, DCB 20-20.
·Progress Notes extracted from Resolve Medical Centre Melton subpoenaed records for attendances from 8 July 2019 to 21 July 2022;[34]
[34] Exhibit D5, DCB 21-44.
·VACIS Electronic Patient Care Record dated 3 July 2019;[35]
[35] Exhibit D6, DCB 45-48.
·Western Health Admission/Discharge Form dated 3 July 2019[36] and Western Health Admission/Discharge Advice dated 3 July 2019;[37]
[36] Exhibit D7, DCB 49-49.
[37] Exhibit D7, DCB 50-51.
·Western Health Report dated 3 July 2019;[38]
·Western Health Emergency Department Clinical Sheet dated 3 July 2019;[39]
·Initial Consultation Progress Note extracted from Enrich Physiotherapy subpoenaed records for attendance on 21 August 2019;[40]
·Standard Consultation Progress Note extracted from Enrich Physiotherapy subpoenaed records for attendance on 11 December 2019;[41]
·TAC Vocational Assessment Report dated 13 November 2020;[42]
·AMP Abridged Physical Work Performance Evaluation Summary dated 8 January 2021;[43]
·Certificates of Capacity from 2 March 2020 to 2 January 2021;[44]
·Report of Associate Professor John Laidlaw, Surgeon, dated 6 September 2021;[45]
·Payslips dated 17 June 2019 to 30 June 2019;[46] and
·Subpoenaed records from Kincraig Medical Clinic undated.[47]
[38] Exhibit D8, DCB 52-52.
[39] Exhibit D9, DCB 53-56.
[40] Exhibit D10, DCB 57-58.
[41] Exhibit D11, DCB 59-60.
[42] Exhibit D12, DCB 61-71.
[43] Exhibit D13, DCB 72-76.
[44] Exhibit D14, DCB 77-104.
[45] Exhibit D15, DCB 105-159.
[46] Exhibit D16, DCB 175-175.
[47] Exhibit D17, DCB 176-226.
The medical debate in the broad
11Despite significant medical evidence, the competing analyses of the plaintiff’s condition, its origins and progression, and whether caused by, or made worse by the transport accident, are very substantially rooted in the opposing positions expressed in the reporting of Mr Awad on the one hand, and Associate Professor Laidlaw on the other hand. Mr Awad has assessed the plaintiff as suffering an aggravation from the transport accident that is serious, whereas, Associate Professor Laidlaw has not.
12In reaching my findings, I have had regard to the medical reports and clinician notes relied on by the parties, as well as the cross-examination and
re-examination of the plaintiff along with the addresses of counsel. In these reasons I have referred to such of the medical evidence that has proved necessary in order for me to arrive at my findings and so as to explain the same.
The transport accident
13The account of the transport accident was not contested by the defendant. It transpired in this way. He deposed that on Sunday 23 May 2019:
“I was driving along James Melrose Drive in Brookfield when another driver reversed their vehicle out of a driveway failing to give way to me. This caused me to collide with the other vehicle.”[48]
[48] Exhibit P1, PCB 4, paragraph 14.
The plaintiff’s affidavit evidence
14The plaintiff’s evidence in chief was contained in the form of two affidavits sworn on 3 February 2022 and 4 November 2022.[49] He also relied on an affidavit made by his father sworn on 28 November 2022.[50] His father’s affidavit was received without objection. It is corroborative of a number of the effects to the plaintiff upon which he relies.
[49] Exhibit P1, PCB 3-9 and PCB 10-12.
[50] Exhibit P7.
15In his first affidavit the plaintiff recounted that police and ambulance attended the accident scene. He said he was in shock. He declined to be taken to hospital. He went home.
16He said that following the transport accident he developed increasing back pain, and as a result, on 3 July 2019, he was taken by ambulance to the Emergency Department of Western Hospital. There he was treated with morphine and underwent an x-ray of the lumbar spine. The events of 3 July 2019 and the preceding days will come to play some prominence in the application.
17On 8 July 2019 the plaintiff attended on his treating general practitioner, Dr Sikka who prescribed Valium and subsequently Norgesic and Panadeine Forte. Dr Sikka referred the plaintiff to a physiotherapist, Mr Murthy. It seems that the plaintiff attended on Mr Murthy once a month from August 2019 until about December 2019. In his further affidavit he deposed that he was unable to return to Mr Murthy because the provision of the service was terminated by the Commission. He says that he currently engages in home exercises and stretches.
18He was also sent by Dr Sikka for a CT scan of the lumbar spine in November 2019. An MRI of the lumbar spine was performed in December 2020. In about January 2021, he was referred by Dr Sikka to Mr Nair, who then referred him for X-ray and CT scan of the lumbar spine in about February 2021. The plaintiff deposed that he was recommended for fusion surgery by Mr Nair but surgery was not approved by the Commission and has not been performed. The plaintiff said that he last consulted Mr Nair in about January 2022.
19The plaintiff continues to see Dr Sikka on a regular basis and who monitors his condition and provides certificates of capacity for Centrelink.
20The plaintiff has over the course of time also been prescribed Mobic and Lyrica.
21The plaintiff has not returned to work since the transport accident. In his further affidavit he deposed that he has yet to find suitable employment. He admits that he has not attempted to seek employment. He does not believe that he would be able to perform his job as a butcher because of his back injury. He places considerable reliance on the fact that butchering is largely all in which he is skilled and experienced to undertake. I accept this vocation has been the mainstay of his working life but he has proved competent to undertake other although sporadic work as will come to be seen.
22The plaintiff deposed that before the transport accident he had intermittent back pain but he had been able to manage it whereas he is now beset with constant back pain. He described a stabbing pain and numbness around the left side of his lower back that radiates down his left leg together with a feeling of numbness making it difficult for him to walk at times.
23The plaintiff claims that standing, sitting, or walking for long periods increases his back pain. He said he had relied on a walking frame for around two months following the transport accident. He deposed that he struggles to walk on uneven surfaces. He said he has difficulty lifting heavy objects because he is concerned about aggravating his back pain.
24The plaintiff deposed that he has lost a considerable degree of movement in his back. It is stiff and tight, and noticeably so when bending, and this loss of movement in his back significantly impacts his ability to perform tasks of daily living. He must, for example, be very careful when bending and picking things up, particularly anything from ground level because of pain, with mornings being the most acute time of the day for back pain.
25The plaintiff deposed that he compensates for the radiating pain down his left leg with the use of his right leg. He said he generally leans on his right side when he is standing so as to take the pressure off his left leg but this results in pain in his right knee at times from overuse. In his further affidavit he deposed that he continues to experience radiating pain down his left leg and left hip and that the accompanying numbness and pain he experiences is almost constant.
26The plaintiff deposed that he was a sound sleeper before the transport accident but that following it, his sleep has deteriorated. Once woken, he finds it difficult to get back to sleep. In his further affidavit, he said he continues to experience difficulty sleeping. He struggles to get into comfortable positions and has trouble sleeping in the one position for an extended period of time. He said that he regularly wakes at night due to pain in his lower back.
27The plaintiff said that he had previously enjoyed motorbike riding. He had owned a Yamaha YZ250 dirt bike which he rode a few times a month without apparent difficulties. He deposed that it would rarely be the case that he could not ride the bike due to the condition of his pre transport accident back and he had been readily able to manage any pain associated with it. He deposed that he had not ridden a motorbike since the transport accident and does not believe he now could. In fact, he has sold it. This has caused him considerable distress.
28The plaintiff deposed that prior to the transport accident he went fishing of a weekend and, as with motorbike riding, the state of his back had not been of such a degree to have prevented him doing so. However, he said that since the transport accident he had fished only once and the loss of this recreational pursuit is also a matter of upset for him. He recently sold his fishing tackle.
29The plaintiff deposed that he would attend the footy usually twice a month. He would catch the train into the games with his sister. He has not been to a match since the transport accident and he is apprehensive about sitting in stadium seating with his back pain. He is also fearful of walking in crowded venues where he might be pushed and shoved and aggravate his back.
30In his further affidavit, the plaintiff deposed that he continues to experience difficulty engaging in sexual activity with his partner, and he considers this has placed a strain on their relationship.
31The plaintiff said he used to love his job as a butcher. His father was a butcher and he has been around the industry from a young age. I accept this is the case.
32The plaintiff deposed he smoked marijuana from time to time “socially” before the transport accident. He now smokes it regularly for pain relief to manage his back pain because of the minimal benefit to him of prescribed pain medication as well as due to his inability to obtain funding for treatment. Nothing in the evidence suggests that his use of marijuana is medically prescribed.
33The state of the plaintiff’s back pain is now such that he has difficulties with personal activities such as toileting. He said he is slow when going to the toilet because it takes him longer to clean himself. He must remain standing while doing so because of the difficulties he has bending and crouching because of back pain.
34The plaintiff thinks his back injury has affected his mental health. He said he is irritable and gets angry easily because of his pain. He worries a lot and tends to panic easily which is unlike his character before the transport accident. He is scared about his future and whether he will be able to work again.
35The plaintiff’s partner has a 5-year-old son with whom he enjoys spending time but is limited in what he can do when playing with the child. He deposed that he has always wanted to have children of his own but does not feel he would be able to support a family because of his back injury and inability to work as a butcher.
36In his further affidavit he deposed that his social life remains stagnant. He said he struggles to engage in social outings and spends his time predominantly at home and lives a mostly sedentary lifestyle and this has led to a significant social and personal detachment from those around him.
Cross Examination and related evidence
37Mr Elliott directed the plaintiff to his affidavits and the extent of disclosure within them to his state of health prior to the transport accident, and, in particular to past instances of back pain, together with his work history. The purpose of the cross-examination was to paint the plaintiff as an unreliable historian at best who lacked credibility, or at worst, as deliberately obfuscating.
38The plaintiff explained that he had suffered from what he described as childhood arthritis.[51] Despite this affliction, he managed to play sports as a schoolboy. He said that in 2003 when aged 21 years of age, he experienced back pain. He underwent x-ray with the cause of pain attributed to his childhood condition.[52] Mr Elliott directed the plaintiff to a CT of the spine.[53] It revealed defects in the pars interarticularis of L5 accounting for the anterior movement of L5/S1, and as Mr Elliott put it, a grade 1 out of 5 spondylolisthesis.[54] The plaintiff said that the condition had not been explained to him by anyone over the years, however, he understood that he had suffered from a condition where there was a slipping of the vertebrae of the spine.
[51] T19, L26-28.
[52] T20, L10-17.
[53] Exhibit P2, DCB 13.
[54] T20, L24 - T21, L3.
The plaintiff’s working history
39The plaintiff has worked almost exclusively in the meat industry and as a butcher.
2003
40The plaintiff said he worked for about 5 years with Southern Meats from approximately the middle of 2001 until 2006 performing knife work and cutting up chickens. In 2003 at Southern Meats he experienced a sore back that he attributed to his work that required him to stand on his feet all day. It had been suggested to him at that time that he find a more sedentary career path. He did not do so. He said that despite long hours and occasional back pain he managed his work with only the odd day off here and there.
2006 opens own butcher business
41In 2006 the plaintiff opened his own butchery trading as Gladstone Meat and Poultry Supply catering to retail customers. He employed his parents and sister along with one non family member. He was responsible for the administration and finances of the business and he butchered meat and poultry, tasks that required long periods of standing.
Insolvency
42In 2013 Gladstone Meat and Poultry Supply ceased trading due to financial difficulties.
Relocation to South Australia
43In the wake of the collapse of his business in 2013 the plaintiff relocated to South Australia. Initially he resided in Kingston, however, he said Kingston offered only limited employment opportunities and he did not secure any work. He deposed that between 2013 and 2017 he was unemployed. He received Centrelink benefits.
44The plaintiff characterised the condition of his back during this period as causing him problems from time to time but “nothing serious.”[55]
[55] T28, L17.
45The reliability of the plaintiff’s assessment of the condition of his back as occasionally problematic but “nothing serious” was challenged by Mr Elliott who directed him to clinical records of the Kincraig Medical Centre, in Naracoorte, South Australia. For example, a note of attendance dated 15 September 2015, mentioned that the plaintiff presented with a back of an “80 year old”. The note also included, "Claims there's no disc in one of his spine giving paraesthesia and pain shooting down the left leg, worst after starting work at Teys, has had this for a long time, used to work in the same industry."[56] The plaintiff agreed he experienced pain in his back with accompanying pain shooting down his left leg. “Teys” is the name of a meatworks to whom it appears the plaintiff was referred by his Centrelink job provider. He said he worked at Teys for one and a half days. However, he could not recall a clinical note that his back worsened after working at Teys.
[56] Exhibit D17, DCB 189.
46A note dated 16 September 2015 by Dr Nicholas Lye read:
"Still unable to work. Centrelink rejected form yesterday as it mentions only has one day off work. Reason for contact, Centrelink certificate. New form written. Advised for changes in industry if possible. Await previous notes. Likely require neurosurgical referral and f/u."[57]
[57] Exhibit D17, DCB 188.
47A further note dated 19 January 2016 recorded:
"History:
Ongoing issues with back pain, wanting further investigation.
No previous reports from other surgery.
All records deleted.Examination:
Para spinal tendernesslumbar spine."[58][58] Exhibit D17, DCB 188.
48The plaintiff ultimately agreed with Mr Elliott that it was because of the condition of his back that he was unable to work at Teys for more than a day and a half. However, he parsed his answer, and added that at any rate, he did not like the working conditions or atmosphere of the employer. Perhaps that was so, but I am satisfied the operative reason he ceased work with Teys after little more than a day was because of the condition of his pre-transport accident back.
49The medical history also records that the condition of the plaintiff’s back before the transport accident was so troubling that he made a claim for a Disability Support Pension, with the application having been supported by his GP.[59]
[59] Exhibit D17, DCB 187.
50A note of entry dated 27 January 2016 by Dr Xiao Zhang recorded:
“Back pain for long history and x-ray shows there's a five millimetre L5/S1, spondylolisthesis, secondary to bilateral L5 pars defects. He can't standing/ sitting/handling heavy goods. If he do so then it will pain for days. Wants to claim the disabled pension.”[60]
[60] Exhibit D17, DCB 187-188.
51In June 2016, Dr Zhang noted:
"The condition has not changed at all. Ideally to see neurologist or neurosurgeon, however, has not money to see the specialist. Will go back to Melbourne soon, and will try the public system over there rather than in South Australia as planning moving there. Advised: get the specialist opinion and may have the right to apply for the disability pension rather than looking of a job. Another suggestion to him, if he can, go to school and study and find some office jobs rather than the labour jobs. He may get the long-term benefit from doing so.”[61]
[61] Exhibit D17, DCB 187.
52The plaintiff said his pension application was rejected.
Return to Victoria and to work
53Despite the state of his pre accident back, on his return to Victoria in early 2017, the plaintiff obtained employment with Poultry N More as a fulltime butcher.
54Notes taken by Dr Rawal on 16 January 2017 state "Low 19 back pain for 14 years. Was in rural SA = butcher, gradually pain worsened, sold business, now back worse".[62]
[62] Exhibit D3, DCB 17.
55A referral by Dr Rawal to Mr Nair and dated 19 January 2017 included a history and presentation that in part read:
"Pain in lower back ongoing
Back pain ongoing
CT noted
Advised to see nS for possible MRI/ further IXStart fentanyl as pain ++".[63][63] Exhibit D3, DCB 17.
56The plaintiff did not follow up the referral because, according to him, his back was not an issue at the time and “I didn't want to go. I was working”.[64] Following the plaintiff’s non-attendance, Mr Nair wrote to Dr Rawal saying, “just a brief note to let you know Mr Olalla was due to come in for an appointment, did not arrive. Will endeavour to reschedule the appointment but would be grateful if you kindly make contact with the patient to facilitate this”.[65] The plaintiff did not make a further appointment with Mr Nair.
[64] T46, L22-24.
[65] Exhibit D4, DCB 20.
57Mr Elliott directed the plaintiff to a note of attendance on Dr Chowdhury dated 4 December 2018, that read: "Was preparing to go to work yesterday while putting boot on twisted and got muscle spasm at back."[66] The plaintiff said he could not remember the incident.
[66] Exhibit D1, DCB 11.
58The plaintiff said that during his period of employment at Poultry N More he never complained to doctors of a sore back,[67] but of course, on this score, the plaintiff’s recollection is faulty because he was working at Poultry N More when he saw Dr Chowdhury on 4 December 2018. It is plain enough that the plaintiff suffered a back spasm when putting on his work boots during the period of time he was working full time duties as a butcher at Poultry N More.
[67] T49, L2-4.
59The plaintiff also saw Dr Sikka on 30 January 2019 for back pain. The note of attendance read: "X-ray normal. Still have pain ++. Reason for visit, back pain”.[68]
[68] Exhibit D5, DCB 21.
60After having taken the plaintiff to this history and it being suggested to him by Mr Elliott that in the course of 2019 and prior to the transport accident he had experienced back pain, the plaintiff said, “Um, I'd had a flare up, yeah”.[69] Mr Elliott suggested to the plaintiff that he had suffered more than a flare-up of pain and in fact he had suffered chronic pain for years. I am satisfied that the evidence is more in keeping with Mr Elliot’s characterisation.
[69] T47, L26-27.
61Mr Elliott directed the plaintiff to an account of history recorded by Associate Professor Laidlaw[70] that following the accident on 23 May 2019 and police and ambulance officers having attended the scene and examining him, he told them he felt fine and that despite the airbag having deployed and hit him in the face, he did not lose consciousness. Nor was he aware of having any particular injuries at the time but that he said he felt quite well and proceeded home where he spent his Sunday undertaking typical activities. The plaintiff agreed with Mr Elliott that he told the ambulance officers who attended the accident that he felt okay.[71] When then asked by Mr Elliott why he said he felt okay the plaintiff answered:
“Because I felt all right but I was more in shock, sir. What do you want me to say? What do you want me to say, man? Jesus”.[72]
[70][70] Exhibit D15, DCB 105-159.
[71] T56, L31.
[72] T57, L1-3.
The disputed immediate post-accident work history
62The plaintiff agreed that he attended work the day following the transport accident and he continued attending work until 3 July 2019.[73] As to the events that occurred on 3 July 2019, Associate Professor Laidlaw’s history included the following:
“Richard said when he woke up the next morning he had lower back pain, and he said that he went to work and by 9 am he found that standing up was making his back pain quite bad. That night after work, he got home and tried to take off his Blundstone boots and he got severe pain in the lower back making it difficult to move, and he was calling out to his family. They helped him to the bedroom, but he was screaming out with back pain. The pain was localised in the middle of the lower lumbar region. He said the low back pain was so severe – low back pain, that even with his family's assistance, he could not get to the toilet in time and urinated in the hallway. His family called an ambulance and when it arrived he was given morphine and was taken to the Western Hospital. He said he was in hospital for about two days. He said during that time his symptoms were all lower back pain and he had no limb symptoms at all."[74]
[73] T50, L31 – T51, L5.
[74] Exhibit D15, DCB 112.
63Mr Elliott questioned the plaintiff about a history it is attributed he gave to Enrich Physio at the time of his initial consultation on 21 August 2019.[75] The plaintiff’s presenting complaints at that date were expressed thus:
“Ongoing low back pain following motor vehicle accident now two months old. Motor vehicle accident two months old. Got rammed from the back, no pain at the time. Works as a knife hand at a chicken factory. Went to work the next day. At the end of the shift felt the back spasm, called the ambulance, seen the GP. Valium and painkillers prescribed.”[76]
[75] Exhibit D10, DCB 57-58.
[76] Exhibit D10, DCB 57.
64The plaintiff agreed with the history recorded in the extracts from the reports put to him by Mr Elliott.[77] The account of history from Enrich Physio is consistent with the report of events related by Associate Professor Laidlaw. However, the history reported by both Enrich Physio and Associate Professor Laidlaw is inaccurate because the plaintiff was not taken to hospital the day following the transport accident. This did not occur until 3 July 2019. The plaintiff endeavoured to explain the error as a result of confusion on his part and the effect on him of strong medication.[78]
[77] T52, L22.
[78] T53, L1-5.
65The Western Hospital notes of the plaintiff’s admission on 3 July 2019 recorded:
“motor car accident ten days previously. No pain at time developed pain over the last three days.”[79]
[79] Exhibit D9, DCB 53.
66Emergency Department initial clinical records made by Dr Roberts on 3 July 2019 state:
“Reports lifetime issue of low back pain, motor vehicle accident 10 days ago, seen by ambulance at scene. Did not attend the hospital as felt okay." [80]
[80] Exhibit D9, DCB 54.
67Dr Roberts entry continued:
"Reports last night came home from work went to take shoes off and on bending down had sudden onset of low back pain sharp and painful+++”[81]
[81] Exhibit D9, DCB 54.
The expanded account of the onset of pain on 3 July 2019
68The plaintiff said that references to pain coming on in an acute manner when bending to take off his work shoes after he got home from work on 3 July was wrong. He said he had been suffering pain at work since that morning. He denied that the onset of pain occurred only when he went to take his shoes off at home. He said, “No, I sat down and I was already suffering from back pain and I just kicked my shoes off like this and that's when my back just locked up, that was it”.[82] The plaintiff said that having been in pain at work on 3 July that he could no longer tolerate, he went home and “I got out of the car and that's when all hell broke loose. It had nothing to do with taking my boots off. It was just where I was sitting at the time kicking my boots off and the pain was there already”.[83] The plaintiff added that despite what was “…said in that note but it didn't actually happen like that, that's the honest truth”.[84]
[82] T55, L17-19.
[83] T56, L1-5.
[84] T56, L16-18.
69The plaintiff’s account including having been in pain all day at work on 3 July 2019 and the use of pain patches that day and that “all hell broke loose” when he got out of his car does not appear elsewhere in the evidence including in his affidavits. The use of pain patches and the difficulty experienced at work on 3 July are not trifling matters. It strikes me that the question is whether the absence of mention in any of the material of the same having occurred is explicable because of a genuine oversight or confusion by the plaintiff, or, whether it is it more probable as Mr Elliott suggested is the case, that these things did not occur as recounted by the plaintiff. Of course, a further explanation is that the doctor’s entry in clinical notes may not amount to an exhaustive account of a history on presentation. Mr Elliott understandably enough directed the plaintiff to the sudden and painful onset of his back in December 2018 when putting on his boots in preparation for work when his back seized up. The plaintiff agreed this might have occurred but he maintained that by comparison on 3 July 2019 he had been suffering from back pain all day at work and prior to the critical onset of pain at home that led him to be ferried to hospital.
70Dr Roberts recorded the plaintiff’s progression with the pain he presented with on 3 July 2019 in this way:
"Reports could barely mobilise. Difficulty getting comfortable in bed. Overnight could not mobilise out of bed to use the bathroom. This morning mum and sister helped him up from bed but still pain triple so couldn't make it to the bathroom. Urinated in the hallway"[85]
[85] Exhibit D9, DCB 54.
71The plaintiff said he was screaming with pain in the hospital the morning following his admission by ambulance.[86]
[86] T57, L29-30.
The plaintiff’s working capacity
72A medical case conference was conducted and was attended by Dr Sikka and the plaintiff on 28 October 2020.[87] Dr Sikka confirmed approval for the goal of the plaintiff seeking work with a new employer and undertaking new duties. Dr Sikka advised that the plaintiff would not be able to return to his pre-accident role and would need to seek work in a lighter or sedentary role in the long-term. Restrictions considered as warranted for a return to work were a requirement for regular postural changes from sitting to standing if needed, as well as regular possible breaks while working. Dr Sikka advised that the plaintiff undertake a graduated return to work performing fewer hours initially prior to a full return to work in six to nine months.
[87] Exhibit D12, DCB 62.
73Despite Dr Sikka’s enthusiasm for finding a more sedentary type of work, the plaintiff said he knew nothing other than butchering and said, “That's all I know how to do, sir, like I don't know how to read and write like I told you yesterday”.[88] The plaintiff acknowledged that he had not sought out any employment.
[88] T73, L27-28.
74Mr Elliott questioned the plaintiff about a vocational assessment that was undertaken on 13 November 2020 by APM Melbourne.[89]
[89] Exhibit D12, DCB 61-71.
75The plaintiff was directed to the job of a gas meter reader. He accepted that at the time of the assessment it was a job he believed he could perform. He accepted the description sketched to him by Mr Elliott of how he typically spent his days which is sitting at home relaxing, watching television, and keeping his feet up.
76The plaintiff underwent what is described as an abridged physical work performance evaluation on 8 January 2021. In addressing the plaintiff’s overall level of work, the evaluation concluded:
“Based on the information summarised in the Dynamic Strength, Position Tolerance, and Mobility sections of the evaluation, Mr Olalla is capable of performing physical work at the medium level as defined by the US Department of Labour…”[90]
“….Based on the Dynamic Strength, Position Tolerance and Mobility sections of the evaluation, Mr Olalla participated fully in 11 out of 11 tasks, and demonstrated no self-limiting participation. Self-limiting participation means that Mr Olalla stopped the task before specific physical signs if a safe maximal effort were observed."[91]
[90] Exhibit D13, DCB 72.
[91] Exhibit D13, DCB 73.
77The plaintiff was directed by Mr Elliott to Associate Professor Laidlaw’s report, part of which included:
“Throughout my interview with Richard, he repeatedly informed me that he was almost completely incapacitated by his low back pain (the pain in the left buttock and quadriceps region being a relatively minor problem compared to the back pain). His description suggested that he was having marked difficulties with his activities of daily living, and that he was incapable of performing any sort of work.
The degree of incapacity that Richard described is inconsistent with his GP's repeated assessments that he's fit to return to work with modified duties."[92]
[92] Exhibit D15, DCB 124.
Defendant’s Submissions
78Mr Elliott’s submissions advanced in final address on behalf of the Commission, reflected those matters he foreshadowed in the course of his opening. Mr Elliott argued that at all relevant times prior to the transport accident, the plaintiff suffered from a constitutional condition of his spine. He referred to the identified pars defect or spondylolisthesis. The condition was significant and painful and had advanced to such a degree that the plaintiff thought it warranted an application for a disability support pension, and this was supported by his general practitioner. The pain the plaintiff had experienced that prompted his recourse to making application for pension is reflected in his medical attendances and often enough is seen to be connected with the work he had performed as a meat and poultry worker for many years.
79Next, Mr Elliott argued, that by comparison, there is an absence of evidence that the plaintiff suffered a further flare up let alone a serious aggravation of his existing back condition caused by the transport accident on 23 May 2019 or in the period of its immediate aftermath. In furtherance of this submission, Mr Elliott relied on the plaintiff having eschewed transport to hospital, his admission to ambulance officers that he was feeling “okay” and having continued to work uninterrupted in the days that followed, something, Mr Elliott submitted, that in all probability he would have continued to do, had it not been for the sudden onset of pain when he was removing his work boots ten days after the accident, with this onset of pain being markedly similar in nature to the pain episode the plaintiff experienced in December 2018 when he was in the process of putting on his boots.
80Mr Elliott next argued that the plaintiff’s reliability is particularly important and that he had been found wanting on matters of substance.
81Mr Elliott relied on the plaintiff having deposed in his first affidavit that “Between 2013 and 2017 I did not work”[93] when the evidence disclosed the contrary during some periods of time. Although the plaintiff worked at a Teys for perhaps only a day and a half, there was evidence of other jobs too, including working at an events company erecting marquees “just off an one, once a month over maybe two-two months”[94] and according to the plaintiff, having worked at crutching sheep for “about a week and a half because it’s seasonal work”[95] he said. Also the plaintiff agreed that he did some plumbing supply delivery work for a day and half in 2018 with Harris Group Enterprises but that he was telephoned by Poultry N More at that time and he wanted to return to the type of work he preferred and was accustomed to. Mr Elliot submitted that the additional work had not been disclosed prior to the hearing and only came to light in cross-examination. Mr Elliott noted that neither had the plaintiff deposed that he had applied for a pension. Mr Elliott also referred to the plaintiff not having disclosed medical attendances for back pain prior to the transport accident and while domiciled in South Australia. Mr Elliott noted that the pre accident state of the plaintiff’s back was such to have warranted a referral to Mr Nair even though the plaintiff did not carry through with the referral.
[93] Exhibit P1, PCB 4.
[94] T88, L7-8.
[95] T88, L1-2.
82Mr Elliott submitted that the plaintiff’s belated recourse to having experienced increasing pain in the days prior to 3 July 2019 and that whilst at work on 3 July he resorted to the use of pain patches should be viewed sceptically and was no more than an attempt by him to exclude a finding that pain was not experienced until he was at home in a comparatively benign setting of him removing his boots and consistent with an aggravation from the accident but instead with his constitutional condition.
83In any event, Mr Elliott further submitted that the plaintiff’s account that he was experiencing an onset and progression of pain in the days leading up to 3 July is consistent with, if not more so, with the attribution being his work and its effects on his already degraded back than any aggravating effects on it of the transport accident, with this being an explanation offered by Associate Professor Laidlaw whose opinion on the point was expressed as follows:
“The evidence suggests that the degenerative spondylotic findings (osteophytic lipping, facet hypertrophy, disc degeneration, the L4/5 broad-based disc bulge) and the L5 pars defects with associated spondylolisthesis were present before the MVA and have not significantly deteriorated or changed as a consequence of the MVA.
…I do not think there has been substantive interval change between the pre-MVA and post-MVA imaging, and I think any changes are minor and are consistent with the natural history of Richard’s chronic lumbar condition.”[96]
[96] Exhibit D15, DC 146 (underlining added).
84As regards the state of the medicine, Mr Elliott made the following submissions. First, he contended that the medical question for determination on this application is whether the plaintiff’s lumbar spondylolisthesis was the subject of an aggravation injury in the transport accident and not whether the accident not only aggravated that condition but also caused a new injury in the form of disc prolapse.
85Ultimately, as to the contention that the transport accident not only aggravated the state of the plaintiff’s degenerate back but caused a prolapse, and thus amounted to a new and separate injury, it is unnecessary to speak to it in any great detail, as it was not pursued in final address by Ms Pilipasidis. Nonetheless, because the reporting in some aspects addresses it along with the pre-existing state of the plaintiff’s spine the question of prolapse requires some attention.
86Mr Elliott referred to Mr Nair, who wrote to the plaintiff’s GP on 28 January 2021 that:
"More recently he started getting a pain that runs on the outer aspect of his thigh up to his left knee suggestive of an L4 pattern of pain. He does not have any similar pain on the right side. His biggest problem, however, is his back pain which gets worse when he is in a stationary position and the leg pain becomes obvious when the back pain reaches significant levels.
He gives a good history and sequence of how his symptoms evolved and what his major problems are. He does not have any focal weakness in his legs and has had a recent MRI after which he is here to see me today.I reviewed his MRI scans which are done at Lake Imaging in Melton which shows significant problems at the L4-5 and L5-S1 levels. He has got a malalignment there along with disc prolapse and lateral canal stenosis causing impingement on to the L4 and L5 nerve roots.”[97][97] Exhibit P3, PCB 36.
87Mr Elliott submitted that the MRI of 30 December 2020[98] failed to identify a disc prolapse. Mr Elliott referred to the MRI that read;
"L5-S1 annular tear with disc desiccation and loss of intervertebral disc heigh. Mild cicumferential disc bulge. No impingement on the lateral recesses. Bilateral forminal narrowing which may be intermittently irritating/impinging the exiting nerve roots.
L4/L5 Modic type I endplate changes and moderate circumferential disc bulge or focal disc extrusion into the right lateral recess impinging the right descending L5 nerve root. Marked image demonstrates a focal disc extrusion which may actually be a sequestered fragment”.[99][98] Exhibit P2.
[99] Exhibit P2, PCB 16.
88Accordingly, Mr Elliott submitted Mr Nair’s opinion lacks support in the medical reporting and, as well, there is an absence of any comparison made between the earlier and later radiology such as to enable it to be suggested, as it is by Mr Nair, that there is an evident disc protrusion. Thus Mr Elliott characterised the comment from Mr Nair as questionable and that he had “plucked out [as] a disc protrusion, or a disc prolapse”[100] having been caused by the transport accident.
[100] T108, L25-26.
89Mr Elliott addressed the MRI of 30 December 2020.[101] The conclusion was expressed in these terms:
“Conclusion: L5/S1 enterolisthesis and there may be pars defect. Nerve impingement in the foramina likely.
L4/L5 possible sequestered disc fragment in the right lateral recess. Nerve impugnment as described. Neurosurgical opinion recommended.”[102][101] Exhibit P2, PCB 16.
[102] Exhibit P2, PCB 16.
90Mr Elliott next directed his submissions to the reporting by Dr Awad. He submitted that Dr Awad’s opinion of the effects on the plaintiff of the transport injury is wanting in material respects and this is reflected in both Dr Awad’s first and supplementary reports.
91Mr Elliott noted how Dr Awad wrote that prior to June 2019 the plaintiff’s medical history is non-contributory to any lumbar spine injuries whereas, as Mr Elliott submitted, the plaintiff had significant problems with his back and had received treatment including from a neurosurgeon in 2017.
92Nonetheless, on the question if the plaintiff suffered a disc prolapse, Mr Elliott identified that Dr Awad addressed the radiological investigations in the following terms:
“There is no disc protrusion, canal stenosis or compression fracture otherwise seen. He also has an MRI scan of his lumbar spine from 30 December 2020. This concludes L5/S1 anterolisthesis secondary to pars defect. There is no impingement in the foramina bilaterally. There was L4/5 possible sequestered disc fragment in the right lateral recess. He also has [had] a CT scan of his lumbosacral spine from 2 February 2021. This shows bilateral pars defect at L5 causing a grade 1 spondylolisthesis with lumbar lordosis slightly exaggerated and a shallow scoliosis convex to the left centred at L4 and L5. There is also bilateral foraminal stenosis at L4/5 and L5/S1 more at L4/5.”[103]
[103] Exhibit P4, PCB 44.
93Accordingly, in line with the radiological investigations, Mr Elliott argued a sequestered disc fragment had been identified, that is, a fragment from the disc as a result of some sort of protrusion left floating in the canal. However, it did not lead Dr Awad to conclude otherwise than that the plaintiff had suffered an “aggravation of lumbar spondylosis"[104] and not a new injury.
[104] Exhibit P4, PCB 45.
94Mr Elliott addressed the second report of Dr Awad dated 26 November 2022. It is a brief report. Its purpose had been to ascertain if Dr Awad’s opinion altered with the provision to him of additional material. It did not. Dr Awad said:
“…I have also reviewed the medical reports of Mr Girish Nair dated 19 January 2017 and 7 June 2017 and that of Dr Jitesh Sikka dated 23 November 2022.
None of the above changes my opinion in my report dated 27 September 2022. It is clear from the added material that the patient may have had an underlying low grade, grumbling back pain, which is mentioned in fact in my previous report. I still however remain of the opinion that the road traffic incident was a significant contributing factor to aggravation of his lumbar spondylolisthesis and remains a significant contributing factor to his ongoing pain, disability and requirements for treatment”.[105][105] Exhibit P4, PCB 48.
95Mr Elliott contested the factual basis for the comment by Dr Awad that, “It is clear from the added material that the plaintiff may have an underlying low grade grumbling back which is mentioned in fact in my previous report"[106] given, as Mr Elliott put it, the plaintiff’s medical history included attendances for his back whilst in South Australia, which records Dr Awad was not supplied, but that identify much more than a “grumbling back”,[107] yet nonetheless, Mr Elliott pressed the point that Dr Awad did not diagnose a new injury.
[106] Exhibit P4, PCB 48.
[107] Exhibit P4, PCB 48.
96Additionally, Mr Elliott submitted that Dr Awad’s first report dated 27 September 2007 was vulnerable because of the mischaracterisation of the plaintiff’s history when he reported that:
"His past medical history prior to June 2019 is non-contributory for any previous lumbar spine injuries or any symptoms suggestive of a significant previous spinal condition. He has had the odd presentation of mild back discomfort but nothing that mandated any specific treatment or between time off work.” [108]
[108] Exhibit P4, PCB 44.
97Mr Elliott submitted that Associate Professor Laidlaw’s report should be preferred. Mr Elliott noted that he addressed the matter of the L4/5 disc bulge/herniation and osteophytes[109]. He wrote that the 17 January 2017 images were “unfortunately unavailable”[110], but that the report of imaging indicated a mild broad based L4/5 disc bulge and osteophytic lipping (as well as the bilateral L5 pars defects and L5/S1 spondylolisthesis of 8mm). He wrote that the CT of 2 December 2019 reported osteophytic lipping at L3/4 and L4/5 but no L4/5 disc protrusion/bulge. He said that the CT of 2 February 2021 reported a broad-based L4/5 disc bulge but without mention of osteophytes.
[109] Exhibit D15, DCB 122.
[110] Exhibit D15, DCB 122.
98In addressing the MRI of 30 December 2020 Associate Professor Laidlaw reported that it confirms:
"L4-5 disc bulge herniation, and suggests a possible right focal herniation with sequestration. I think MRI is a superior study for detection of disc degeneration/herniation/bulge, although cortical bone (e.g. osteophytes) is less well demonstrated on MRI than it is on CT. Using both the 30/12/2020 MRI and the 02/02/2021 CT I think there is definite L4/5 disc degeneration and broad based bulge. However, I think the MRI image with the proposed sequestrated disc herniation is likely to be the bone anomalies associated with the pars defect.
The images of the 2019 and 2021 CT scans are available and are very similar and, on the balance of probabilities, the L4/5 degenerative changes and disc bulge have been present and are similar on all CT scans (2017, 2020 & 2021). The December 2020 MRI confirms the L4/5 disc bulge, but the sequestrated component of the disc herniation may actually be artefact from osteophytes.”[111]
[111] Exhibit D15, DCB 122.
99Mr Elliott quoted further from Associate Professor Laidlaw and that part of his report under the heading “Pars defects and L5/S1 spondylolisthesis”:
“The pars defect and degree of spondylolisthesis at L5/S1 have not changed between 2017 (images not available but measured at 8mm) and 2021. We have to assume this spondylolisthesis was missed on the plain x-ray at Western Health ten days after the accident which did not report any abnormalities.”[112]
[112] Exhibit D15, DCB 122.
100Lastly, Mr Elliott placed reliance on this passage in the report of Associate Professor Laidlaw:
“The evidence suggests that the degenerative spondylotic findings (osteophytic lipping, facet hypertrophy, disc degeneration, the L4/5 broad-based disc bulge) and the L5 pars defects with associated spondylolisthesis were present before the MVA and have not significantly deteriorated or changed as a consequence of the MVA. There is a question regarding whether there is a right L4/5 sequestrated fragment of herniated disc on MRI performed in December 2020, or if that is artefact. It is on the opposite side to the lower limb symptoms, and therefore if real it is of little clinical significance, and any association with this MVA more than a year ago is unlikely but unknown.” [113]
[113] Exhibit D15, DCB 123.
The Plaintiff’s Submissions
101Ms Pilipasidis commenced her final address by submitting that at the time of the accident the plaintiff was working at Poultry N More and was in receipt of a gross income of approximately $53,570.[114] This receipt of income was not contested by the defendant. Ms Pilipasidis contended that I should accept that the plaintiff has sustained pecuniary loss consequences by reason of his transport injuries. Whilst Dr Sikka and Dr Awad, as well as Associate Professor Laidlaw, were of the opinion that the plaintiff may have some light work capacity, no one suggests that he possesses the capacity to return to his pre-injury duties. Accordingly, Ms Pilipasidis argued, the plaintiff has sustained pecuniary loss consequences[115] and will continue to suffer the same by reason of his injury. Ms Pilipasidis argued that in the event I am satisfied that the plaintiff has a permanent incapacity for his pre-injury duties, and/or that he is losing income because of the transport accident, then he should succeed in his application for a serious injury certificate on pecuniary loss grounds alone. Of course, the fact of the existence of pain and suffering consequence and a loss of earning capacity, if any, are to be assessed conjunctively.
[114] Exhibit P5, PCB 49.
[115] See, for example,: Humphries v Poljak [1992] 2 VR 129, 151 [50]; Hunter v TAC & Avalanche [2005] VSCA 1 [35].
102Ms Pilipasidis next submitted that in accordance with the decision in Gennimatas v TAC[116] the transport accident need only be a cause of the plaintiff’s injury.[117]
[116] (2002) 5 VR 552 (‘Gennimatas’).
[117] Ibid 554 [37]-[40].
103Ms Pilipasidis urged me to find that the plaintiff presented as a genuine and honest individual who gave truthful evidence including, on occasions, against his own interest by accepting that he had a long history of back complaints and had from the outset disclosed the extent of his pre-existing condition.[118]
[118] Exhibit P1, PCB 4, paragraphs 8-13.
104Ms Pilipasidis argued that the medical evidence supports a finding that the plaintiff’s back condition has been aggravated by the transport accident and that the aggravation is “serious” in accordance with the principles of Petkovski v Galletti.[119] Ms Pilipasidis submitted that the aggravation itself is serious for the following reasons:
·surgery to the spine has been recommended. There is no evidence that surgery was contemplated prior to the accident;
·he has been unable to return to his pre-injury employment or alternative employment and he is losing income by reason of his injury; and
·whereas the back pain prior to the accident would abate and was episodic, the plaintiff’s current complaints are now constant.[120]
[119] [1994] 1 VR 436.
[120] Exhibit P1, PCB 6, paragraph 35, PCB 11, paragraphs 6-9.
105Ms Pilipasidis addressed the medicine. She observed that Dr Sikka treated the plaintiff prior to the accident. In his report dated 23 November 2022[121] he observed that the plaintiff’s back pain worsened following the accident. Dr Sikka diagnosed mechanical lumbar back strain with radiculopathy. Dr Sikka believes that the plaintiff requires surgery, and following a period of rehabilitation, he may have the capacity to return to suitable alternative lighter office based work.
[121] Exhibit P3, PCB 41-42.
106Mr Nair recommended that the plaintiff undergo a fusion.[122] He sought permission to perform an L4/5 and L5/S1 interbody fusion with laminectomy and fixation to address the plaintiff’s ongoing back pain and bilateral leg pain.
[122] Exhibit P3, PCB 39.
107Mr Nair diagnosed the plaintiff with L5-S1 pars defect and spondylolisthesis at
L5-S1 and slight retrolisthesis at L4-5.[123][123] Exhibit P3, PCB 39.
108Although Mr Nair believed that the changes seen on the scan and the symptoms were pre-existing, he considered that the accident “could certainly have contributed to him making him symptomatic to a level where surgery now needs to be considered.”[124]
[124] Exhibit P3, PCB 40.
109Ms Pilipasidis relied upon the report of Dr Awad. Dr Awad was of a similar opinion to Mr Nair that there was an L4/5 possible sequestered disc fragment in the right lateral recess and that the plaintiff was suffering from an aggravation of spondylolisthesis with left lower limb radiculopathy. He regarded the transport accident as the most likely significant contributing factor to the aggravation of the plaintiff’s lumbar spondylolisthesis, and that it remains a significant contributing factor to his ongoing pain, disability, and requirement for treatment. Dr Awad considered surgery in the form of an L5/S1 stabilisation surgery is reasonable.
110Dr Awad thought the plaintiff possesses some capacity for sedentary work on a part time basis. Whilst he noted that the imaging prior to the transport accident demonstrated a known L5/S1 spondylolisthesis, he commented that the plaintiff appeared to have been functioning well, and was able to do so mainly without pain. He reported that the radiological investigations were very similar from pre-accident to post-accident. However, he was of the opinion that on the balance of probabilities the accident aggravated his underlying condition. He also wrote that it is possible that there has also been “a fraction of radiological worsening in the form of the L4/5 level which is now an addition noted on the post-accident images and was not noted on the pre-accident imaging”.[125]
[125] Exhibit P4, PCB 46.
111In his second report dated 26 November 2022[126] following receipt of further pre-accident radiology and clinical notes, Dr Awad remained of the opinion that the accident was a significant contributing factor to aggravation of the plaintiff’s lumbar spondylolisthesis, and that it remains a significant contributing factor to his ongoing pain, disability and requirement for treatment.
[126] Exhibit P7, PCB 52-54.
112Ms Pilipasidis addressed the alternative opinions expressed by Associate Professor Laidlaw. Ms Pilipasidis submitted that I should not prefer his opinion for the following reasons:
·his report is not current;
·his examination of the plaintiff was done via Telehealth without the benefit of a clinical assessment;
·he assumes that on the balance of probabilities that the motor vehicle accident was not a significant cause or aggravating factor in the plaintiff’s continuing condition because there was a delay in onset of symptoms.[127] However, Ms Pilipasidis relied on the plaintiff’s account that he did experience symptoms after the accident albeit not on the day it occurred and that his symptoms deteriorated to the point where he required hospitalisation on 3 July 2019.[128]
·he does not accept that there is referred pain or radicular symptoms down the legs, but he did not conduct an independent examination;
·he does not accept Mr Nair’s assessment (and Dr Awad’s) that there was potentially minor retrolisthesis at L4 and L5 because it was not reported by the radiologist and he thought “it was negligible and not of pathological significance”;[129] and
·he concludes that the plaintiff does not have radicular leg symptoms[130] which is contrary to the opinions of Dr Sikka,[131] Mr Nair[132] and Dr Awad.[133]
[127] Exhibit D15, DCB 122.
[128] T54, L28-T55, L2.
[129] Exhibit D15, DCB 143.
[130] Exhibit D15, DCB 144.
[131] Exhibit P3, PCB 42.
[132] Exhibit P3, PCB 36.
[133] Exhibit P4, PCB 45.
113Despite these asserted shortcomings with the report, Ms Pilipasidis submitted that Associate Professor Laidlaw:
·concedes that the plaintiff has foraminal stenosis and lateral recess at L4/5 and L5/S1 which can compress either the L4, L5 or S1 nerves[134] even though he concludes that he did not think there had been substantial interval change between the pre and post-accident imagining;[135]
·recognises that Mr Nair noted retrolisthesis at L4 on L5, although he thought it was negligible and not of pathological significance;[136] and
·does not exclude that the accident was not a cause of his symptoms.
[134] Exhibit D15, DCB 146.
[135] Exhibit D15, DCB 146.
[136] Exhibit D15, DCB 143.
114Ms Pilipasidis further submitted that although the plaintiff had a pre-existing back condition, he was more than capable of working in the two years prior to the transport accident, particularly, at Poultry N More between 16 August 2017 and 9 October 2017 and from 11 June 2018 to the date of the accident in May 2019. He worked prior to the accident albeit with symptoms flaring up from time to time. Ms Pilipasidis pointed out that the plaintiff deposed that immediately prior to his transport accident he was not taking medication for his back pain. He was able to manage his back pain and did not let it interfere with his daily life and had been capable of working full time hours and performing his normal duties.
115Ms Pilipasidis identified and placed store upon the following pain and suffering consequences as being readily identifiable as markedly different and worse since the transport accident:
·constant lower back pain; [137]
[137] Exhibit P1, PCB 6.
·bilateral leg pain; [138]
[138] Exhibit P1, PCB 7.
·interference with sleep; [139]
[139] Exhibit P1, PCB 7, 11.
·interference with ability to engage in work; [140]
[140] Exhibit P1, PCB 6, 8, 11.
·interference with ability to lift things; [141]
·difficulty walking on uneven surfaces; [142]
·difficulty standing, sitting, walking for prolonged periods; [143]
·the plaintiff’s father undertaking most household jobs – cooking, cleaning, vacuuming, mopping, washing clothes, cutting grass; [144]
·undertaking of household chores being accompanied by worsening back pain;[145]
·loss of ability to ride motorbike; [146]
·inability to return to fishing; [147]
·difficulty attending football; [148]
·interference with sexual activity; [149] and
·interference with social and recreational activities. [150]
[141] Exhibit P1, PCB 6.
[142] Exhibit P1, PCB 6, 11.
[143] Exhibit P1, PCB 6, 11; Exhibit P7, PCB 53.
[144] Exhibit P7, PCB 53.
[145] Exhibit P7, PCB 53.
[146] Exhibit P1, PCB 7, 11.
[147] Exhibit P1, PCB 7, 11.
[148] Exhibit P1, PCB 7, 11.
[149] Exhibit P1, PCB 8, 11.
[150] Exhibit P1, PCB 12.
Analysis and findings
116At the outset of these reasons, I referred to Mr Elliott’s submission that the Commission did not accept that the plaintiff has suffered injury because of the effects on him of the transport accident. The force of the Commission’s submission rests very substantially, although not exclusively, on the absence of contemporaneity of complaint of injury whether considered at the time of, or in the immediate aftermath, of the transport accident. Another matter on which reliance was placed by the Commission, was the reliability of the plaintiff’s recall together with his credibility being put in issue. Finally, the Commission contended the radiology was unsupportive of a change equating to a serious aggravation or of a new injury.
117Addressing the absence of contemporaneity, the plaintiff agreed that he did not seek a hospital attendance at the scene of the accident and as well he accepted that in answer to having been asked how he felt, he told the ambulance officers that he was okay. He went home under his own steam. He described spending the balance of his weekend in a manner no different from his ordinary and every day Sundays. The next day he attended work as he did each week day thereafter until 3 July 2019 and his hospitalisation.
118Chronologically, and understandably, Ms Pilipasidis relied on the note of entry appearing in the Western Hospital notes of the plaintiff’s admission that recorded:
“motor car accident ten days previously. No pain at time developed pain over the last three days.”[151]
[151] Exhibit D9, DCB 53 – (underlining added).
119The words highlighted from the above extract from the admission notes were relied on by Ms Pilipasidis to narrow the period for the development of the onset of pain following the accident to approximately seven days, by comparison to Mr Elliott, who submitted that the onset of pain did not manifest until the tenth day, and occurred when the plaintiff was removing his boots at home and, therefore, should be regarded as causally unconnected to an aggravation caused by the transport accident but more probably the effect of work on a long vulnerable back.
120In my opinion, reliance on the effluxion of time from the date of the accident to a definite recorded onset of pain may risk not seeing the wood for the trees. Aggravation does not exclude a gradated worsening of something nor does it demand that the process of a worsening of a prior condition must be capable of identification immediately and contemporaneously with an accident. In this case, and on one view of things, it could of course be said, that even if the note of admission to Western Health is treated as accurately reflecting what developed, that it is nonetheless difficult to reconcile as an onset of pain attributable to an aggravation from the transport accident because there is no other account expressed by the plaintiff in his affidavits or in other reports that he “developed” pain at what would amount to approximately seven days after the transport accident or at any earlier period of time following it. Whilst I accept that aggravation caused by a transport accident need not manifest itself immediately or within a defined number of days after an accident, an increasing passage of time, understandably directs attention away from an aggravation injury to a consideration of the pre-existing state or condition and impairment of the affected body function.
121I regard the reference in the Western admission note of pain having developed at what would be some seven days after the accident, renders the plaintiff’s account that he experienced pain at work on 3 July 2019, and thus before the occurrence of the removal of his boots when at home, more probable than not and, more consistent than not, with a gradual onset of a worsening of pain following the accident. True enough the plaintiff experienced an episode with work boots prior to 3 July 2019 but its occurrence in the context of a compromised pre accident spine although relevant, cannot determine whether or not the incident on 3 July 2019 was attendant with greater consequence to the plaintiff because of the transport accident.
122In my judgment more relevant to a resolution of the question at hand than is the effluxion of time, is whether against the background of a lengthy and problematic pre-transport accident back, coupled with a working environment the plaintiff had been recommended he should swap out for something more sedentary and had not, and having continued to undertake butchering work in the days that followed the accident, the development of acute pain some seven days after the accident is more probable than not attributable to an aggravation injury of a pre-existing condition caused by the accident.
123Earlier I referred to the reliance had by Ms Pilipasidis to Gennimatas and the submission that in accordance with the principles expressed in it, the transport accident need only be a cause of the injury.[152] In other words, s93 of the Act embraces injury with concurrent causes. In my opinion, more refined in its reasoning, and more apposite to the circumstances of this application than is Gennimatas, a case in which Ashley J. was primarily concerned with the correctness of the principles applied to an impairment assessment by VCAT, is the decision of the Court of Appeal in Rowe v TAC.[153] There the applicant had a severe psychiatric condition. The issue was the extent it was caused by the transport accident in which he was involved. The plaintiff/appellant argued the accident only had to be a cause of the condition. This was rejected by the trial judge and by the Court of Appeal who ruled that the trial judge was required to determine if injury had been caused by the transport accident and then if the injury identified was “serious” bearing in mind that it is the applicant who has the overall evidentiary onus.
[152] Gennimatas (2002) 5 VR 552, 554 [37]-[40].
[153] [2017] VSCA 377.
124In many instances whether compensable injury has been suffered by a plaintiff is a factual question to be resolved on the whole of the evidence. That is the approach I have adopted in the determination of this application. I make the trite observation that the hearing of an application for serious injury is not intended to be and, because of the manner in which the same are conducted, is incapable of being approached with the full rectitude that accompanies a trial proper of a proceeding.
125I have taken account that Associate Professor Laidlaw reported that the images of the 2019 and 2021 CT scans are very similar and he wrote that “on the balance of probabilities, the L4/5 degenerative changes and disc bulge have been present and are similar on all CT scans (2017, 2020 & 2021). The December 2020 MRI confirms the L4/5 disc bulge, but the sequestrated component of the disc herniation may actually be artefact from osteophytes”.[154] He also believed that the pars defect and degree of spondylolisthesis at L5/S1 had not changed between 2017 (images not available but measured at 8mm) and 2021. He went on and added this:
“The evidence suggests that the degenerative spondylotic findings (osteophytic lipping, facet hypertrophy, disc degeneration, the L4/5 broad-based disc bulge) and the L5 pars defects with associated spondylolisthesis were present before the MVA and have not significantly deteriorated[155] or changed as a consequence of the MVA. There is a question regarding whether there is a right L4/5 sequestrated fragment of herniated disc on MRI performed in December 2020, or if that is artefact. It is on the opposite side to the lower limb symptoms, and therefore if real it is of little clinical significance, and any association with this MVA more than a year ago is unlikely but unknown.” [156]
[154] Exhibit D15, DCB 122.
[155] Underlining added.
[156] Exhibit D15, DCB 123.
126It is problematic and somewhat risky, I think, to conclude that because of a clinical opinion that there did not appear to be a significant deterioration over time observable on imaging that there could not be consequences that are in their effect very considerable and more than significant or marked because of the transport accident. A less than significant observable change in radiology may, however, be sufficient to cause a more than significant aggravation in the consequences experienced by the plaintiff. It seems to me that this is what has transpired in this instance. In reaching this conclusion, I have stripped away and excluded the consequences and effects on the plaintiff due to the state of his prior back condition. Having done so, I am satisfied that the plaintiff has been left incapacitated for the work he had almost exclusively performed throughout his adult life despite his pre-existing condition. Indeed, the cross-examination of the plaintiff’s omissions to disclose or recall periods of work while going through that period of unemployment referred to earlier in these reasons, perhaps only highlights a previous ability to undertake some work despite the state of his pre transport accident back. I am satisfied that as at the date of the hearing of the application, what residual capacity for work there is, manifests itself in economic loss. The position of a gas meter reader although a position the plaintiff accepted he might have been able to perform at one point in time was not the subject of any real analysis particularly in light of the state of the current certificates of capacity issued by his treating doctor. Moreover, and when the same is considered together with the pain and suffering consequences the plaintiff addressed in his evidence, and which I accept, then it strikes me that he is entitled to the grant of a certificate when the consequences are judged both according to their effect on him at the date of the hearing of this application and as they call to be judged objectively within an assessment of range.
127I am satisfied that the transport accident resulted in a serious aggravation to the plaintiff’s spine as opposed to the plaintiff presenting as he now does only because of a minor aggravation resulting from the transport accident. Despite the state he was in before the transport accident the plaintiff’s condition allowed his participation not only in very considerable periods of work albeit with episodes of pain but as well with a capacity to engage in a range of activities from which he derived pleasure but now no longer exist.
128I am not persuaded that the omissions in history from the plaintiff’s affidavit are evidence of untruthfulness. It was careless and unhelpful that this occurred but the plaintiff did not deny the fact of the other matters when put to him and frankly I did not assess the plaintiff as exhibiting sufficient guile as to deliberately engage in misinformation for the purpose of the betterment of his application. Indeed, against the previous history that was available, for him to have attempted to do so, would have been a forlorn exercise. Nor am I satisfied that such omissions as identified in the evidence is of a sufficient nature and effect as to have altered the primary findings I have reached.
129For the reasons I have expressed, and having applied the principles I have identified, I am satisfied that the plaintiff suffered a transport injury on 23 June 2019 when involved in a motor vehicle collision. I am satisfied that accident caused a serious aggravation of his spine with consequences that are more than marked and that it is a long term injury and that he has discharged his onus of establishing that the impairment caused by the 2019 collision was severe within the meaning of s93 of the Act. In assessing the pain and suffering consequences and economic loss consequences the aggravation has wrought to him, I am satisfied the plaintiff is entitled to a serious injury certificate.
130I will hear the parties on the form of orders and on costs.
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