Ozzimo v Transport Accident Commission
[2013] VCC 1952
•11 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05063
| JOE OZZIMO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 October 2013 | |
DATE OF JUDGMENT: | 11 December 2013 | |
CASE MAY BE CITED AS: | Ozzimo v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1952 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport Accident – serious injury – impairment of the lumbar spine
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with Ms N Wolski | Nowicki Carbone |
| For the Defendant | Mr P Elliott QC with Ms R Annesley | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 22 January 2010 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the lumbar spine.
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]
[1](2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”? – see Humphries & Anor v Poljak.[2]
[2][1992] 2 VR 129 at 140-1
8 The plaintiff swore two affidavits and relied upon an affidavit sworn by his son, Daniel, on 18 October 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff is aged forty-eight, having been born in May 1964 in Italy. He presently lives with his seventy-eight year old mother and four sons, Daniel, twenty-four, and three younger sons aged between fifteen and eleven.
10 The plaintiff migrated with his family to Australia when aged two. He attended high school and completed Year 10. Following school, the plaintiff worked in spraying and assembling furniture. During that time, he became involved with the wrong crowd and began to use marijuana and amphetamines, and soon became unwell.
11 In about 1983, the plaintiff suffered a mental breakdown and ceased employment, and was diagnosed with schizophrenia.
12 In about 1985, the plaintiff commenced receipt of a disability support pension for his psychiatric condition and was still in receipt of the pension as at the said date. He was hospitalised on a number of occasions for that condition, including during 2008 after separating from his wife.
13 Prior to the said date, the plaintiff was able to care for his children and mother and he was capable of performing all household tasks such as cooking, cleaning and shopping without difficulty. He did not suffer from any ongoing physical problems.
14 The plaintiff enjoyed taking his four sons on road trips. During school holidays, he often took them to the beach for a holiday and they travelled to Ballarat every couple of weeks to visits his son’s sister. He regularly took his boys to the local park for a game of football or cricket.
15 Before the said date, the plaintiff loved gardening and used to maintain plants including fig, olive and walnut trees, and he grew various vegetables. He took pride in the maintenance of his garden, mowing and weeding it regularly without difficulty.
16 The plaintiff was responsible for maintaining his mother’s home where he and his sons also lived. He sanded and painted the outside of the timber house and replaced weatherboards. He also pulled down the old garage. He did other repair work, like replacing vinyl floors, ripping out the carpet and other general maintenance tasks without difficulty.
17 The plaintiff was able to assist his brother when he built his new home, engaging in generally heavy work, like putting in the bath and unloading timber materials. Before his brother built his house, the plaintiff helped him maintain the block by keeping it clear of rubbish and weeds.
18 The plaintiff also enjoyed keeping physically fit, doing push ups and sit ups almost every day. Before the said date, he enjoyed socialising and going out when he could.
19 On the said date, the plaintiff was a rear seat passenger in a car driven by his ex wife, which was hit while stationary by another vehicle (“the accident”).
20 As a result of the accident, the plaintiff suffered injuries to his spine and psychological and psychiatric injuries.
21 Following the accident, the plaintiff was taken by taxi to Williamstown Hospital where he was prescribed analgesic medication and discharged later that day. The plaintiff attended his general practitioner, Dr Miao, on 25 January 2010 complaining of back pain.
22 The plaintiff was referred for an x‑ray of his lumbosacral spine, which he understood revealed spondylosis at L1-2 and L3-4.
23 In early February 2010, the plaintiff attended the Inner West Medical Centre in Yarraville for acupuncture treatment, which he undertook for about twelve months. Later in February 2010, he attended Mr Kwok, physiotherapist, from whom he also received treatment for about twelve months.
24 The plaintiff was referred for an MRI scan of his lumbar spine which he understood revealed multilevel disc degeneration, a disc protrusion at L5-S1 and an annular tear at L4-5.
25 As of 21 December 2011, the plaintiff had been referred by his general practitioner for psychological treatment at the same clinic. He had then undergone ten sessions on a fortnightly basis.
26 The plaintiff then continued to experience ongoing pain and restriction of movement in his lower back. His pain tended to run across that area and often tended to radiate up his spine, creating tightness in his upper back and then down his legs, often resulting in leg weakness. He found it difficult and painful to perform actions such as heavy lifting, twisting, bending, squatting or sitting, standing and walking for long periods of time, and as such, he tended to avoid those activities.
27 The plaintiff had difficulty driving for prolonged periods of time and that caused his low back to ache. Accordingly, he tried to avoid driving for more than about half an hour. In order to manage his back pain, he tended to pull over to stretch if he had been driving for a while and, when possible, preferred his son, Daniel, to drive.
28 The plaintiff then had difficulty taking his children on road trips, which he had found increased his pain and were no longer as enjoyable. Further, when driving, the plaintiff often experienced feelings of stress and anxiety and became increasingly nervous and worried, and panicked about his car being hit from behind. He then tended to avoid driving when he could and furthermore, he would become anxious upon passing the accident scene and frightened on seeing accidents on the television. As a passenger, he felt constantly tense and persistently worried about his car being hit.
29 The plaintiff had difficulty after the accident renovating and maintaining his mother’s house, finding it painful if he engaged in heavy and strenuous work which tended to aggravate his low back pain. He had problems maintaining the plants and trees in the garden, particularly the fruit trees. He generally had to use a ladder to prune and pick from the trees. He had difficulties standing on the ladder using a saw, due to his back and leg pain. He also felt unstable on the ladder because of his leg weakness.
30 The plaintiff found it difficult to hold and push the lawnmower as the vibrations caused an uncomfortable sensation in his lower back. He tended to avoid lawn mowing and weeding his garden because bending and squatting exacerbated his low back pain and at that stage, he was hiring a person to mow the lawns.
31 The plaintiff then had difficulty maintaining the household. Tasks such as vacuuming and mopping were difficult because the amount of standing and bending required caused his low back to ache. He also avoided cleaning the bathroom because of these problems and sought assistance from his son to do the housework. The plaintiff also required assistance from the council in this regard.
32 The plaintiff had difficulty carrying heavy shopping bags and sought assistance from Daniel.
33 The plaintiff found it difficult to play active sports or games with his sons. He experienced difficulty pushing his boys on swings as it caused his back to ache. Further, he found it difficult to play football, as running and kicking increased his back and leg pain. The plaintiff also tended to avoid cricket because over-arm bowling required twisting, which exacerbated that pain. He then had to rely on his partner to take the boys to the park and he tended to watch rather than participate in games with them.
34 The plaintiff’s physical fitness had been diminished and he found it painful to do push ups or sit ups, as they tended to aggravate his low back pain. He found, as a result of his lower back symptoms, sexual activity had become difficult, painful, embarrassing and less enjoyable.
35 The plaintiff described often experiencing feelings of stress and anxiety regarding the restrictions on his ability to do things at home. Prior to the accident, he was occupied and rewarded by his ability to help out at home but his limited ability in terms of home maintenance and the garden caused him to feel increasingly worried about his future.
36 The plaintiff had little to engage in or take up his time and, as such, he feared becoming increasingly bored and conscious of his limitations.
37 The plaintiff often experienced anxiousness and fear about the future of the relationship with his children, who, prior to the accident, were a focus of his day and he played an active role in their development and daily activities. Thereafter, he had been unable to participate fully and had become increasingly anxious about being excluded from their lives.
38 Since being injured, the plaintiff occasionally experienced feelings of depression, and the ongoing pain and limitations caused by his accident were a continuing source of disheartenment for him. He felt depressed when he could not work on his mother’s house, complete the gardening, carry the groceries or play with his sons.
39 The plaintiff described how he now tended to become angry and irritable more easily and frequently than he did before the accident. His pain and ongoing restrictions caused him to feel frustrated when he could not do what he used to do.
40 The memory of the accident had become a source of paranoia for the plaintiff and he was constantly thinking about it, the pain in his back or his ongoing restrictions, and constantly feared the accident would have a continuing impact on his future.
41 Since suffering injury in the accident, the plaintiff felt his life had changed. He felt shaken by the accident and found it difficult to be as happy and active as he used to be.
42 Prior to the accident, the plaintiff had been doing well in his life and had constructive and meaningful things to work towards. He was focussed on renovating and maintaining his mother’s house, on caring for a promising garden and being highly involved in his children’s lives. Those matters gave his life purpose, meaning and stability, and their absence after the accident had caused him to feel less meaningful and less stable.
43 The plaintiff swore a further affidavit on 18 October 2013. He deposed that since swearing his first affidavit in December 2011, he felt his condition had generally deteriorated.
44 While he confirmed he still suffered the same pain, restrictions and limitations described, the plaintiff thought during the past two years or so he had had flare ups in his pain more and more frequently, having more bad days compared to earlier. He described the flare ups in pain that he now experiences, particularly in regard to his lower back pain and legs as sometimes having been quite difficult to cope with.
45 The plaintiff’s back pain is still constant in nature and sometimes can be a dull ache but other times can be severe. In addition, the pain continues to radiate up into his mid back region as well as down his buttocks and legs and during a bad day, it radiates to his legs as far as his feet.
46 The plaintiff also continues to experience pins and needles and tingling sensations in his feet at most times, which sometimes can be very difficult to manage. His back and leg pain is still aggravated by prolonged periods of standing or sitting (including driving) and by various movements such as lifting, twisting, bending and pushing and pulling movements and the like. Sudden jarring type movements like when he coughs or sneezes also cause an increase in pain.
47 The plaintiff’s sleep is still interrupted by pain and it is not unusual for him to wake several times during the night, even if he has taken strong painkillers before bed. Constantly he often feels tired and fatigued and washed out during the day.
48 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[3]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[3](2010) 31 VR 1 at paragraph 45
49 In addition, the plaintiff has continued to experience psychological symptoms and difficulties described in his earlier affidavit. In particular, despite his best attempts, sometimes he still gets depressed, especially when his pain is very bad or whenever he tends to dwell on thoughts about what he has lost as a result of being injured.
50 In addition, the plaintiff continues to worry about the future and whether he will be able to continue to look after his sons if his back continues to get worse.
51 Early last year, the plaintiff began to get very depressed and anxious about his situation, and things then spiralled downwards and he ended up spending six weeks in Werribee Mercy Mental Hospital. This was a difficult time for him.
52 Since December 2011, the plaintiff has continued to see Dr Miao, as well as Dr Stockman, a rheumatologist; Dr Mahonti, psychiatrist, and Ms Cameron, psychologist. Recently he has also recommenced acupuncture provided by his general practitioner.
53 The plaintiff continues to use heat packs for his back and completes home exercises and tries to go walking when his pain levels allow him to do so. In addition, he still relies on medications including OxyContin and Panadol for pain relief. He also takes anti-depressant medication and continues to take Zyprexa, which was prescribed before the accident for schizophrenia.
54 During the last two years, despite ongoing pain and associated problems, the plaintiff has tried to keep active and be a help and not a burden for his sons.
55 For example, the plaintiff still tries to do some of the lighter chores at home, such as laundry and cleaning, and still does some of the shopping. He still tries to do some cooking and tries to get into the garden to do some light work.
56 However, the problem remains when the plaintiff tries to do these things and if he accidentally overdoes them, he certainly pays for it later with increasing pain in the days that follow.
57 That situation has meant that the plaintiff now has to pay tradesmen to do any of the heavier tasks around the house that he easily managed before the accident. He had to pay someone to paint the inside of the house and do some of the other repairs and now pays someone to maintain the gardens and lawns.
58 The plaintiff concluded that he thought one of the best ways to sum up his situation was that because of his accident injuries, the more active he tries to be and the more he tries to go out and do things, the more pain he suffers.
59 In cross-examination, the plaintiff confirmed he had separated from his wife in 2008 and has had the children for eight years. He has had custody of Daniel since he was six years old.
60 The plaintiff’s mother moved out in 2012 when the plaintiff had a breakdown because of his medical condition and was hospitalised. She is now seventy-eight and has a lot of arthritis.
61 The plaintiff confirmed his pre-accident position of doing all the household tasks. It was the correct summary that during the past two years his condition had generally deteriorated but he tried to keep active and not be a burden for his children in terms of cleaning, gardening and other activities as described in his second affidavit.
62 The plaintiff is able to get out and do things but when he accidentally overdoes it, he certainly pays for it later with increasing pain in the days that follow. He agreed he had to be careful and make sure he did not overdo things.
63 Before the accident, the plaintiff and his brother painted the whole house. Recently the plaintiff has had to pay a painter and he was not able to help out. He could use a paintbrush but his back would then start aching. He could do some painting if he took breaks and did it at his own pace.
64 The plaintiff agreed he was visited by an occupational therapist in 2010 but could not remember some of the strategies suggested. The plaintiff tried using the lawn mower but his back started straining when he bent down to get the grass and put it in the bin from the catcher. He continues to pay someone to mow the lawn.
65 The plaintiff’s garden is a decent big size. He used to grow vegetables. Now there is nothing but grass. The plaintiff might just do a little bit of weeding, keeping it neat and tidy.
66 Two of the plaintiff’s sons are at high school and one is in Grade 6. The plaintiff sometimes drives them to school and sometimes they walk or take the bus. The plaintiff usually does the cooking and looks after the children generally, helping them with their homework and doing the things a normal father does. The children help hang out the washing and they do some cooking and generally help out.
67 Daniel gives the plaintiff a bit of a hand, as do the younger boys here and there, and his mother helps as much as she can. The plaintiff does not have to drive her to the doctor’s regularly. He still sees his two brothers. The plaintiff’s younger brother and his wife lived with the plaintiff until last year.
68 The plaintiff’s social life is pretty much kids and family and that has been the situation for years.
69 The plaintiff last went to the gym a long time ago, maybe six years ago, three years before the accident. Before the accident, he used to do push ups at home.
70 The plaintiff confirmed physiotherapy was not helpful. He had acupuncture for about a year and then went back again about three weeks ago. The physiotherapist gave him some exercises and he has been doing them, but they do not really help. He has been doing a lot of walking. He is not doing core strengthening exercises as much as he used to. Last year he would have been doing them twice a week, but he cannot do sit ups. The exercises do not really make much difference and his back is still sore.
71 The plaintiff confirmed his description of pain as set out in his first affidavit. He still has problems with pain in both legs, into his spine and neck, and difficulties with particular movements such as heavy lifting, twisting, bending, sitting or squatting, and walking for long periods of time.
Surveillance
72 There was 41 minutes of film taken on 21 February 2013 and a couple of minutes on 23 February 2013.
73 The defendant admitted that the plaintiff was under surveillance for a total of 20 hours.
74 The first video started at 8.09am. The plaintiff was shown tipping a bottle of water over the windscreen of his car at a 7-Eleven outlet in Melbourne Road. He was with his fifteen year old son.
75 The plaintiff then took his son to Bayside Secondary College in Kororoit Road at about 8.26am. He then went to a milk bar at 8.35am.
76 The film recommenced two hours later, at 10:36am. The plaintiff was then walking in front of a clearance shop doing the shopping. He then drove to Windscreens Power at Geelong Road, Hoppers Crossing, where he had a chip in his windscreen repaired. He sat and stood at various times, waiting for that repair to be completed. He squatted, smoking from 11.18am to 11.39am. He stood up and leaned against the wall. He went to get his son some chips.
77 At 11.52am, the plaintiff filled his car with petrol at the adjoining petrol station and then drove to an Altona bakery at 12.14pm. He purchased some food for lunch and at 2.58pm, went to Bayside Secondary College, where he sat in his car waiting for his son.
78 The plaintiff was next filmed on Saturday, 23 February 2013. The film commenced at 9.58am when the plaintiff was shown at a milk bar, and he then went to Woolworths in his local shopping centre.
79 Between 10.08am and 10.10am, the plaintiff was shown inside the supermarket carrying a basket of shopping. He agreed it was a fairly good load and he did not use the trolley. He then walked out to the car park, put the shopping bags in the boot and drove off.
80 The plaintiff explained the kids helped him a lot with the shopping.
81 When it was suggested to the plaintiff that he did not complain to his general practitioner from the middle of last year until January 2013 of any problems with his back, the plaintiff said he used to go to him often to tell him that his back was in pain. He was not sure whether he had told his doctor in that period.
82 The plaintiff agreed that he had been treated for his schizophrenia by a psychiatrist at Werribee Mercy Mental Health and he attends Saltwater in Footscray, where he is treated by Dr Mohotti, who prescribes antidepressants. The plaintiff is getting over his breakdown from 2012.
83 The plaintiff takes Zyprexa nightly for his schizophrenia. He used to have injections but has been off those for five or six months. He now takes a tablet at night and he also takes antidepressants.
84 The plaintiff has had psychological treatment from Shelly Cameron who practises at Dr Miao’s surgery. He currently sees her once a month under a general mental health plan regarding generalised anxiety and panic disorders.
85 For the last four months, Dr Miao has been prescribing OxyContin. Panadeine Forte was not of much assistance. The plaintiff also still takes Panadol.
86 The plaintiff sometimes goes walking for 20 to 30 minutes. He denied that on occasions he goes camping. The plaintiff agreed that in December 2011, he went to Echuca with his sons for three to four days and stayed in a motel. They did not go camping. The plaintiff could not do much but the boys went to car shows and other activities. The plaintiff did not go swimming. His son drove to Echuca and the plaintiff did not drive at all.
87 The plaintiff really cannot afford to do many other activities with his sons as he is on a disability pension. He sometimes takes them to the beach in summer for an outing.
88 The plaintiff likes cars but does not take much interest in them. He does not really work on his car and he gets a mechanic to change the oil and do other things.
89 The plaintiff takes his mother out to his brother’s house in Point Cook on the weekend. He sees his extended family and they all mix together. That would be his main social outing.
90 In re-examination, the plaintiff confirmed he had started OxyContin because sometimes he has “really, really, like bad pain”, severe pain in the whole of his back. He usually takes two Panadol in the morning and two at night every day. He takes OxyContin nearly three days a week.
91 Before the accident, the plaintiff was not on any antidepressants. He now takes 30 milligrams every morning.
92 The plaintiff never had any back pain before the accident. Since the accident, there has not been a day when he has not had back pain. His back is sore every day. It is not severe every day.
93 Before the accident, the plaintiff did maybe 300 push ups a day but thereafter he had not really been able to do push ups or sit ups.
94 Before the accident, the plaintiff used to grow tomatoes and beans and other vegetables. He prepared and dug the soil and did the planting and weeding. He used to do everything in the garden. Since the accident, he has not been able to grow his own vegetables as his back gets really painful after a while, after he does things.
95 Before the accident, the plaintiff really did not need help from his sons around the house.
96 After the engaging in the sort of activities shown in the video, the plaintiff just relaxes at home. After he does a lot of things, he has to lie down sometimes for a couple of hours because of the pain which goes from his lower back and runs all the way up to his neck and down his legs.
Lay evidence
97 The plaintiff’s son, Daniel, aged twenty three, swore an affidavit on 18 October 2013.
98 Despite the plaintiff’s diagnosis of schizophrenia before the accident, he thought the plaintiff was generally fit and healthy.
99 The plaintiff had custody of him since he was six and from that time had cared for him and his brothers.
100 Daniel confirmed that before the accident, the plaintiff managed all the chores around the house and garden. He loved gardening and used to spend many hours pottering around mowing the lawns and pruning his fruit trees.
101 Before the accident, the plaintiff did all of the shopping and most of the cooking and seemed to take a great deal of pride in his role as father and carer. The plaintiff also managed most of the maintenance at home and could turn his hand to most things including house renovations.
102 Daniel did not notice the plaintiff suffering any significant depression or anxiety before the accident and he recovered from bouts of schizophrenia.
103 As a family, they enjoyed a busy life together, often having family meals, going out a lot and going on long trips, and also having a kick of the footy and playing cricket in the park.
104 In contrast, the accident and its injuries had had a terrible effect upon the plaintiff. Daniel often sees him taking analgesic medication and the plaintiff tells him he is in pain. The plaintiff tries to be strong and stoic but sometimes the pain gets to the point where he cannot hide it any more.
105 The plaintiff now tends to rest a lot more than he did before the accident, when he was always busy doing something.
106 The plaintiff now has trouble completing many of the heavier household chores and shopping, and relies on Daniel and his brothers to a much greater degree and they have taken over much of the care of their grandmother.
107 The plaintiff is now also quite limited in relation to heavy maintenance around the house and garden. He tries things and then ends up having to get someone to do the work.
108 Daniel notices the plaintiff suffering pain but he tries to hide it as much as possible. The trouble is though, if the plaintiff tries to get out in the garden or at home, he certainly pays for it later with very bad pain. The more active he tries to be and the more he tries do around the house, the more pain the plaintiff suffers.
109 Overall, Daniel believes the plaintiff’s injuries have changed his life dramatically and had a terrible effect on him. In fact, last year things deteriorated to the point where the plaintiff became very fed up and depressed and anxious and had to be hospitalised for about six weeks. Daniel believed that had been a very difficult time for the plaintiff.
Occupational therapist
110 The defendant sent an occupational therapist to the plaintiff’s home in April 2010. He advised the plaintiff, that given the nature of his accident injury and recovery to date, it would be reasonable to expect he should be able to resume the gardening through the use of standard equipment and application of suggested strategies and the use of a lightweight Whipper Snipper.
111 It was also advised that ongoing support, Family Services, did not appear necessary at that stage.
112 Rob Nanson maintained the plaintiff’s lawns from 23 March 2011 and had done son so ten times, charging the plaintiff $40 for a two-hour visit.
Treaters
113 The plaintiff attended Western Health Emergency on 21 January 2010, complaining of lower back pain. He had some mild lower back muscle tenderness on the right but there was no midline tenderness and he was neurologically normal. He was prescribed analgesia and advised to return if he was worried, but there was no record of him doing so.
114 Dr Miao reported on 18 February 2010, advising of the plaintiff’s attendance on 25 January 2010, a week after the accident. On 11 May 2011, Dr Miao thought the plaintiff was suffering from back pain due to the accident and noted he had also been hospitalised for depression.
115 On 1 August 2013, Dr Miao reported again, confirming the initial examination on 25 January 2010.
116 Dr Miao noted that over the years the plaintiff has had back pain on and off, complaining of a tender, stiff back, being unable to do normal housework tasks, such as lawn mowing.
117 Dr Miao diagnosed lower back pain caused by the accident. He thought the prognosis was uncertain and would fluctuate from time to time in the future. Certainly in his view, the accident would cause the plaintiff partial incapacity for his pre injury employment.
118 Dr Miao thought the plaintiff’s condition had stabilised, with fluctuation of pain from time to time.
119 Dr Miao noted the plaintiff would have ongoing treatments in the future, mainly conservative, such as painkillers, physiotherapy, massage and acupuncture, and there was no need for any other investigations at that stage. He thought the injury was consistent with the accident.
120 On the day of the hearing, Dr Miao sent a facsimile detailing the plaintiff had been on 10 milligrams of OxyContin since 28 May 2013 and the duration of medication was perhaps another six to twelve months.
121 The plaintiff was referred by Dr Miao to Dr Alex Stockman, rheumatologist, and saw him on one occasion on 22 June 2012.
122 General examination was then unremarkable. Movement of the lumbar spine was painful and there was some reduced movement. There was marginal reduction bilaterally of straight leg raising but no neurological abnormalities in the lower limbs. The plaintiff was tender over the lower lumbar spine.
123 Dr Stockman had available the x‑rays from the day of the accident and the MRI scan of February 2011.
124 Dr Stockman concluded the plaintiff’s condition would be consistent with disc degeneration. He noted the plaintiff seemed to be coping without much analgesia (the plaintiff stating that Panadeine Forte did not help him) and he found physiotherapy unhelpful.
125 Dr Stockman told the plaintiff he would have to accept the pain. He referred him back to the physiotherapist for core strengthening exercises, back education and self management, and felt that ongoing physiotherapy was not necessary.
126 Dr Stockman noted the plaintiff understood that he would just have to accept the pain but he expected that the plaintiff would be able to cope with his exercises and little physical work.
127 Dr Stockman thought the plaintiff’s back condition was consistent with the accident circumstances. He considered the prognosis was guarded and that the plaintiff may have to accept some pain and some disability.
128 Dr Stockman thought the plaintiff’s condition would probably stabilise and future treatment was that of self management and simple analgesia. He felt the plaintiff’s symptoms were consistent with lumbar disc degeneration or prolapse.
129 Ms Mulherin, psychologist, certified that she had seen the plaintiff sixteen times for counselling since 13 April 2011. She noted the plaintiff had been treated for depression and anxiety related to his back pain, which he reported was accident related.
130 Ms Mulherin noted the plaintiff had recently been hospitalised for depression for a five-week period, which he advised was triggered by his back pain and ongoing physical limitations due to that pain.
131 Dr Singh, consultant psychiatrist from Mercy Health, reported in August 2012 that the plaintiff had a long history of schizophrenia since his late adolescence and had had a few admissions; the first in 2004, later in December 2008 and most recently in April 2012.
132 As of August 2012, Dr Singh noted the plaintiff was taking Flupenthixol Depot, 30 milligrams intramuscular every two weeks and Olanzapine, 15 milligrams at night.
133 Dr Singh thought the plaintiff suffered from hypertension. He noted the plaintiff was assessed on 5 February 2010 by the CAT Team but did not mention any accident or related back injury.
134 On the last examination in July 2012, Dr Singh thought the primary diagnosis was schizophrenia with mood and anxiety symptoms, noting the plaintiff suffered from a chronic relapse in his condition and his prognosis depended upon his compliance with his medication.
135 Dr Singh was not sure if the plaintiff’s illness was triggered by and/or related to in whole or in part the accident injuries. He noted that as the plaintiff suffered from psychiatric illness before the accident, it was difficult for him to comment about the correlation.
136 Dr Singh then thought the plaintiff’s mental state was currently stable, noting he was currently reviewed by the community treatment team.
137 Shelly Cameron, clinical psychologist from Mercy Health, reported in August 2013. She initially saw the plaintiff under a review in June 2012 and saw him again following a mental health plan in January 2013. The plaintiff continues under his care.
138 The subsequent referrals from Dr Miao requested Ms Cameron see the plaintiff regarding Mixed Anxiety and Depression and Panic Disorder.
139 Ms Cameron noted that the plaintiff had previously had counselling from Ms Newman, psychologist, in November 2009.
140 Ms Cameron reported that the plaintiff had at times spoken about the accident but unfortunately she was not in a position to answer the questions raised by his solicitors, as she had specifically seen him for anxiety symptoms and had worked with him on strategies for him regarding his anxiety and depressive symptoms.
141 Ms Cameron thought, as far as the plaintiff’s accident injury was concerned, every time he had attended he had spoken about back pain that he was experiencing all the time. He had spoken often about the pain of sitting in the chair while talking and had indicated it had been difficult for him to sit for the length of the session because of his pain, having to cut one session short on that basis.
142 The plaintiff had also discussed the great loss he felt because the pain had made it impossible to go to the gym, an activity he enjoyed before the accident and he kept himself physically fit, and his inability to do it had been a great loss. The plaintiff had also spoken about having lost friends following his injury because they were mostly gym connected.
143 Ms Cameron noted the plaintiff continued to have ongoing mental health issues, having, as recently as June 2013, been admitted to PARC Recovery Centre on a self-referral.
Investigations
144 Dr Miao organised an x‑ray of the plaintiff’s lumbar spine on 25 January 2010.
145 It was reported the vertebrae were correctly aligned. There was slight anterior spondylosis at the L1-2 and L3-4 levels. Disc spaces appeared normal, and oblique view showed no additional abnormality.
146 Dr Miao organised an MRI scan of the plaintiff’s lumbar spine in February 2011.
147 It was reported there was multi level disc degeneration. There was a small left paracentral L5-S1 disc protrusion and small left posterolateral L4-5 annulus tear. No definite nerve root compression was seen.
148 Dr Miao organised a CT scan of the lumbosacral spine on 26 April 2013.
149 It was reported there was mild primary canal stenosis opposite L3, L4 and L5 vertebral levels. There was co existing mild disc disease at those levels which resulted in moderate narrowing of the spinal canal with mild indentation on the ventral aspect of the thecal sac. There was mild to moderate disc bulge, also seen at the L2-3 level, resulting in mild narrowing of the spinal canal and bilateral neural foramina.
Medico-legal evidence
150 Mr Peter Kudelka, orthopaedic surgeon, initially examined the plaintiff in April 2011, and more recently in August 2013.
151 On initial examination, there was restriction of lumbar movement with tenderness in the upper and lower thoracic and lower lumbar regions. Straight leg raising was restricted to 50 degrees on the left but there were no neurological abnormalities.
152 Based on the history, physical examinations and radiology (MRI scan of February 2011), Mr Kudelka diagnosed aggravation of degenerative changes in the lower lumbar spine, particularly at L4-5 and L5‑S1. He believed the present symptoms could be related to the accident on the basis of aggravation of probably pre existing age-related constitutional degenerative changes in the cervical and lumbar spines. He thought the effects of the aggravation would not completely subside over time.
153 On re-examination, movement of the lumbar spine was still restricted but straight leg raising was within normal limits.
154 Mr Kudelka had available the 2013 CT scan of the lumbar spine, noting the appearances were similar to those described in the February 2011 MRI, although the previously noted annular tear at L4-5 was now not described as being present, and may have healed.
155 Mr Kudelka thought the plaintiff’s condition was backache and stiffness associated with degenerative changes in the lumbar spine which were not excessive or unusual for a patient aged forty nine. He thought probably that condition was aggravated by the accident and had not completely resolved with respect to his lumbar spine, although previous neck pain and stiffness appeared to have resolved. He thought the lumbar spine condition could be considered stabilised.
156 Mr Kudelka thought there would be restrictions on a long term basis in relation to domestic gardening and sporting activities.
157 Dr Nathan Serry, consultant psychiatrist, examined the plaintiff in August 2011 and July 2013.
158 On initial examination, Dr Serry noted long standing pre existing paranoid schizophrenia and that the plaintiff continued to experience low back pain and associated restrictions.
159 From a psychiatric viewpoint, Dr Serry thought there had been no deterioration in the plaintiff’s schizophrenia but he had been somewhat stressed and anxious by his limitations, transiently low in mood but he had not experienced any sustained depression. He noted the plaintiff had also been somewhat traumatised by the direct accident circumstances. He thought the plaintiff had suffered an Adjustment Disorder as a result of the accident.
160 On re-examination in July 2013, Dr Serry thought the plaintiff’s traumatisation features were best conceptualised as a Post-Traumatic Anxiety Syndrome but not a full blown PTSD.
161 In terms of prognosis, Dr Serry thought that reflected the underlying and quite significant pre-existing schizophrenic condition. He noted it was clearly of considerable importance the plaintiff complied with his medication.
162 Dr Serry thought the prognosis for the accident-related injuries was mixed, noting the plaintiff experienced ongoing pain and restrictions, and there appeared to be a nexus between the physical injury and his level of stress, thus putting him at some greater risk of a relapse of his pre-existing condition.
The Defendant’s medical evidence
163 Dr Mohotti, Registrar of Psychiatry, wrote to Dr Miao on 27 September 2010, thanking him for referring the plaintiff.
164 Dr Mohotti noted the plaintiff had a history of schizophrenia from his early twenties and had multiple admissions in the early part of his illness, the last being in December 2008. The initial impression was of mild depression and with anxiety and no evidence of psychosis.
165 There was no mention of any car accident or accident-related complaints.
166 Dr Mohotti again wrote to Dr Miao in January 2012 for a secondary consultation. Again, there was no mention of any accident-related problems.
167 Mr Joss Middleton, CAAT triage of Mercy Mental Health, wrote to Dr Miao in September 2011, at which time the plaintiff was expressing concern regarding anxiety and increased panic. Mr Middleton made no mention of the accident.
168 Ms Cameron, clinical psychologist, wrote to Dr Miao on 9 August 2012, thanking him for the referral of the plaintiff regarding generalised Anxiety and Panic Disorder.
Medico-legal evidence
169 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in May 2013.
170 The plaintiff advised him that he had constant low back pain that radiated down both lower limbs and radiated proximally in the spine.
171 On physical examination, there was no deformity of the spine. There was tenderness of the lower lumbar region in the midline. There was some restriction of lumbar movement that caused low back pain. There was reduced bilateral straight leg raising. There was no neurological abnormality.
172 Mr Dooley had available the plain x‑rays of January 2010, the 2011 MRI scan and the CT scan of 2013.
173 Mr Dooley thought the plaintiff had naturally occurring degenerative disc disease of the lumbar spine. He believed that in the accident, the plaintiff sustained a soft tissue injury to the lumbar spine that will have involved some musculoligamentous damage and some aggravation of naturally occurring degenerative disc disease. He noted certainly following such an injury, a patient could note significant initial pain.
174 Mr Dooley noted, following the recovery period in the order of three months, one would expect a patient’s low back pain to be intermittent and associated with some intermittent lower limb pain.
175 Mr Dooley reported while the plaintiff’s low back pain was consistent with symptomatic degenerative disc disease of the low lumbar spine, from a qualitative point of view, he believed that the constancy and intensity of the plaintiff’s ongoing pain were greater than one would expect to see for his condition. He also noted the plaintiff had significant mental health issues that were influencing his ongoing symptoms.
176 From an orthopaedic point of view, Mr Dooley believed the appropriate treatment for the plaintiff was for him to remain generally active and to undertake low impact exercises such as walking. He thought the plaintiff would need to sensibly modify activities in terms of bending, lifting and any heavy physical pursuits. In his view, the plaintiff did not require formal ongoing conservative treatment and he thought the plaintiff would need to be careful with continuing use of morphine-based oral analgesia.
177 Mr Dooley would not expect the plaintiff’s orthopaedic condition to deteriorate in time over and above the natural evolution of his underlying degenerative disc disease.
178 Mr Dooley concluded the plaintiff would be unable to do heavy physical work with a lot of bending, lifting or twisting.
179 The plaintiff was examined by Associate Professor George Mendelson, psychiatrist, in May 2013.
180 On examination, Professor Mendelson thought the plaintiff’s affect was perhaps mildly anxious. He did not elicit any current delusional ideation from the plaintiff. The plaintiff told Professor Mendelson that he was depressed because he could no longer do things.
181 Professor Mendelson concluded there was no indication the accident had caused an exacerbation of the plaintiff’s pre-existing paranoid schizophrenia or had led to the development of any other diagnosable mental disorder.
Overview
182 It is not in dispute that the plaintiff suffered a back injury in the accident, diagnosed by Mr Dooley and others as a soft tissue injury of the lumbar spine, and some aggravation of naturally occurring degenerative disc disease.
183 It is uncontradicted the plaintiff was asymptomatic before the accident and symptomatic since, and continues to be so and will probably continue so in the future.
184 Whilst Mr Dooley commented that the plaintiff’s pain was greater than one would expect given the nature of his condition, there is no suggestion the plaintiff’s condition is not organically based.
Credit
185 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[4]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[4](supra) at paragraph [12]
186 I found the plaintiff to an unsophisticated, truthful witness who did not overstate his level of pain and restriction. The limited surveillance film shown did not show a level of activity inconsistent with the plaintiff’s evidence, save for his ability to squat whilst waiting for his car to be repaired.
187 There was no suggestion by any medical examiner that the plaintiff deliberately embellished or exaggerated his complaints.
188 The plaintiff’s son’s affidavit corroborating his evidence was not challenged.
189 An assessment of the plaintiff’s pain involves, inter alia, what he says about his pain.[5]
[5]Haden Engineering Pty Ltd v McKinnon (supra) per Maxwell P at paragraph [11]
190 I accept that the plaintiff has constant radiating back pain that he has described and he suffers flare ups of his condition if he overdoes things. He is restricted in his ability to lift and bend, and prolonged postures pose a difficulty for him.
191 I accept that the plaintiff has recently been prescribed OxyContin because of a deterioration in his condition. Whilst no deterioration has been specifically documented by Dr Miao, he organised a further MRI scan of the plaintiff’s lumbar spine in April this year. OxyContin was prescribed one month later, and continues.
192 Constant pain and the requirement for regular medication, particularly of this nature, must raise the real prospect of a very considerable consequence – Dodds-Streeton AJ in Kelso v Tatiara Meat Co Pty Ltd.[6]
[6](2007) 17 VR 592
193 The plaintiff has had limited improvement with the range of conservative treatment undertaken by him and no further treatment has been suggested, save for continuing exercises. The plaintiff continues to follow this advice and can exercise to a limited extent.
194 As counsel for the defendant noted, to the plaintiff’s credit, prior to the accident, he had been able to look after his children despite his quite serious psychiatric condition. The plaintiff’s life was a simple one, focussing on the care of his four boys and his elderly mother. He was not a man of many hobbies but enjoyed gardening and home maintenance.
195 Counsel for the plaintiff submitted that prior to the accident, the plaintiff was functioning well in his “limited universe”.
196 Whilst the plaintiff retains the ability to do most of his pre-accident activities, his capacity to do so is now limited by his back pain, and he later suffers if he overextends himself.
197 The plaintiff is no longer able to engage in home renovations and is unable to do physical tasks of the kind that he previously undertook and enjoyed. He has had to pay tradesman and a man to mow the lawn because he can do longer do these tasks due to back pain.
198 The plaintiff still does various activities with his sons but he is unable to actively participate in more strenuous activities and sporting activities with them.
199 The plaintiff enjoyed exercising before the accident. His inability to do so since the accident is a significant loss for him.
200 In considering the plaintiff’s application, I am entitled to take into account the expected emotional consequences of his physical impairment.[7] I accept that the plaintiff gets frustrated and upset by his ongoing back pain and the limitations it places upon him in performing his many day-to-day activities. Dr Serry described the plaintiff was stressed and anxious in this regard. These complaints were also noted by both of the plaintiff’s treating psychologists. Professor Mendelson mentioned the plaintiff was depressed because of his inability to do things.
[7]Richards v Wylie (supra) per Winneke P
201 Whilst he has had ongoing treatment on a long term basis for his schizophrenia, the plaintiff did not require antidepressant medication until after the accident.
202 As the plaintiff’s condition has continued for nearly four years without improvement, I am satisfied that his impairment is long term.
203 Taking into account all of the evidence, I am satisfied that the plaintiff’s impairment narrowly satisfies the test of seriousness set out in Humphries & Anor v Poljak.[8]
[8]Supra
204 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the accident.
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