Pamplin v Transport Accident Commission
[2013] VCC 1202
•5 September 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-12-01831
| DAVID PAMPLIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 August 2013 | |
DATE OF JUDGMENT: | 5 September 2013 | |
CASE MAY BE CITED AS: | Pamplin v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: [First revision 12 September 2013] | [2013] VCC 1202 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment of the spine, both feet and right knee
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dordev v Cowan [2006] VSCA 254
Judgment:Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Verduci Lawyers |
| For the Defendant | Mr J P Gorton SC with Mr M G Klemens | Solicitor to the Transport Accident Commission |
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 21 April 2009 (“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 spine, both feet and the right knee.
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 v Poljak.[2]
[2](1992) 2 VR 129 at 140-1
8 The plaintiff relied on three affidavits and gave viva voce evidence. He was cross-examined. Mark Munro swore an affidavit and was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
9 The application was initially also brought pursuant to s93(17)(c) of the Act, for a psychiatric impairment. That application was abandoned in submissions.
The Plaintiff’s affidavits
10 The plaintiff is presently aged forty-eight, having been born in July 1965. He left school at seventeen after completing Year 11. He worked on scallop boats for about five years and in the off season worked as a sandblaster at Geelong.
11 In 1987, the plaintiff commenced his apprenticeship, which he completed in 1991, and the following year he obtained a Certificate of Advanced Electronics. In 1992 to 1993, the plaintiff again worked on the scallop boats and from 1993 to 1995, he worked as an electrician at the Victoria Hotel in Little Collins Street.
12 In his first affidavit, sworn in August 2011, the plaintiff deposed that between 1995 and the said date, he worked as an electrician in industrial, commercial and domestic projects.
13 In 2007, the plaintiff was involved in a motorbike accident (“the 2007 accident”) in which he sustained injuries to his right knee. He was off work for two years following that accident up to the said date, but by then he had recovered from his injuries and had planned to return to work as an electrician.
14 On the said date, the plaintiff had travelled to a unit in Gooch Street, Prahran (“the property’) to quote on a job. He was travelling home when an accident occurred in Bacchus Marsh Road, Corio, when his vehicle was hit in the rear whilst turning right into a service station (“the accident”).
15 Following the accident, the plaintiff was able to drive his car to a friend’s place nearby.
16 As a result of the accident, the plaintiff suffered injuries to his neck, wrists, shoulders, back, knees, both feet, and shock. He was taken by a friend to Geelong Hospital, where he was examined and investigations undertaken, and he was discharged after nine hours.
17 The plaintiff later attended his general practitioner, Dr Warner, from whom he continued to receive treatment for his accident injuries. The plaintiff had physiotherapy treatment, as well as swimming, sauna and spa.
18 As a result of his injuries, the plaintiff had not been able to return to work and was restricted in what he could do.
19 The plaintiff had received pain management treatment from Dr Vagg, pain management specialist, and he had cortisone injections to his feet and blood injections. Doctors had recommended to the plaintiff medial branch nerve blocks and he had been prescribed medication for the pain, depression and muscle cramps.
20 As a result of his injuries, the plaintiff deposed he then suffered constant pain and limitation of movement in his back, neck, both legs, feet and both knees.
21 The plaintiff had pain in his wrists and suffered from migraines which totally incapacitated him. The plaintiff had trouble sleeping because of the pain. He became irritable and upset. As a result of all of his injuries, he was incapacitated for work.
22 Prior to the accident, the plaintiff enjoyed scuba diving, bush motorbike riding, skiing, fishing off a boat, socialising with friends and dancing. He was no longer able to participate in most of those activities, including rock climbing, gymnastics and swimming, and his sex life had been diminished.
23 Referring to this paragraph in his third affidavit, the plaintiff deposed he had not enjoyed scuba diving and other physical activities between 2007 and 2009, but before 2007, when he was fit. He had problems with his right knee and some back pain following the 2007 accident.
24 The plaintiff swore a much more detailed second affidavit on 25 June 2012.
25 The plaintiff described in approximately 1985, when working as part of a Centrelink scheme, he had a motor accident when he hit a telegraph pole (“the 1985 accident”).
26 The plaintiff suffered injuries to his head and neck and he had a partial amputation of his right index finger. He also suffered a fractured jaw and injured his right leg.
27 The plaintiff was an inpatient at Geelong Hospital and in a coma for two weeks. After regaining consciousness, he was an inpatient for about two months. He was then released home and treated in outpatients.
28 The plaintiff underwent physiotherapy, hydrotherapy and speech therapy, and also took medication. He was off work for about a year and a half and he then worked with a plumbing company as a labourer before starting his electrician apprenticeship.
29 The plaintiff then had a second motorcar accident when he was going to work with the Water Board and hit a truck. He was in shock but had no real treatment.
30 The plaintiff did a CES course in 1985 and worked as a labourer in 1986.
31 In 1987, the plaintiff worked at the Geelong Hospital as an apprentice electrician for three years and then moved to the Water Board to complete his apprenticeship, where he was employed for a year between 1989 to 1990.
32 The plaintiff deposed to the following jobs:
· 1991 to 1992 – studied but not completed an advanced electronics course
· 1992 to 1993 – full time on scallop boats
· 1993 – commenced work with JLI Australia wiring spa pumps and heating
· 1994 – labourer
· 1996 to 1997 – employed by Mobile Electrical Services with duties involving Ministry of Housing properties
· 1997 – Total Electrical Connection Pty Ltd refitting lights and circuits to switchboards for David Jones’ stores
· 1997 – Novotel Hotel repairing electrical devices
· 1998 – Prestige Cosmetics with duties involving installation and construction of cosmetic signs and display units
· 1998 – Fuseright Electrical Pty Ltd repairing retail display stands for Max Factor Cosmetics
· 1998 – Paris Electrics, work involving installation of data cabling, amongst other duties.
33 In 1999, whilst riding a pushbike in Essendon, the plaintiff collided with a car (“the 1999 accident”). In that accident, the plaintiff suffered concussion and an injury to the right knee, together with some neck pain.
34 The plaintiff attended his general practitioner and was given medication. He was then working for a hire company at Melbourne Airport. After eight days off, he returned to full-time work.
35 Between July 2000 and June 2001, the plaintiff was employed by Statewide at Melbourne Airport. Thereafter, he worked for a year for Extruded Metals doing work involving fault finding and general maintenance.
36 In about 2002, whilst in that job, the plaintiff was involved in a motor vehicle collision in Moonee Ponds (“the 2002 accident”).
37 The plaintiff suffered injuries to his right knee and neck and was an inpatient for four hours. He saw an orthopaedic surgeon, who gave him three injections into his right knee.
38 The plaintiff believed he had an x‑ray to his neck, which showed some fractures. He was given a neck collar, which he wore for about two months. He had physiotherapy and took medication and was off work for approximately two months, and then returned to full-time duties.
39 The plaintiff continued to work through hire companies as an electrician from June 2003 until August 2006, when he was unemployed for two months. For four months thereafter, he was employed by Team Solutions as an electrician, and between February and July 2007, he was employed by the New Enterprise Incentive Scheme (“NEIS”).
40 In about 2007, the plaintiff had a motorbike accident (“the 2007 accident”) in which he injured his right knee.
41 The plaintiff attended Geelong Hospital and after a while he had surgery conducted by an orthopaedic surgeon. He underwent physiotherapy and hydrotherapy.
42 In 2007, the plaintiff had an x‑ray, and in 2008, he underwent an MRI scan of his right knee. On 18 February and 25 March 2009, he saw Mr Bowyer, who gave him injections in his right knee.
43 The plaintiff was off work from the 2007 accident but the treatment for his right knee was effective and in April 2009, he was going back to work.
44 On or about the said date, the plaintiff had travelled to Prahran to give a quote for electrical work on a development site. He was returning after looking at that site and driving in Corio, when he stopped to do a right-hand turn and the accident occurred, with an enormous impact to his vehicle, moving it substantially.
45 Prior to the accident, the plaintiff considered he could perform his work as an electrician and he was seeking work, having given a quote just before the accident.
46 Due to the accident, the plaintiff suffered pain in his neck and back. Both knees hit the steering wheel and he felt pain from his neck into his shoulders and also in his feet.
47 The plaintiff underwent x‑rays and a CT scan at the hospital. He then saw his general practitioner, Dr Warner, who gave him medication including Panadeine Forte, Celebrex and anti-inflammatories. As he was becoming depressed, the plaintiff was prescribed antidepressants.
48 The plaintiff underwent an x‑ray of his neck on 20 July 2009 and a CT scan in August 2009. As his neck, back and knee were not improving, on 25 February 2010, he had an MRI scan to his neck and lower back.
49 In about March 2010, as the plaintiff was not getting any better, he saw Dr Vagg, who gave him pain blocks to his neck. Dr Vagg requested the defendant fund further treatment, but this request was refused.
50 When he swore his second affidavit in June 2012, the plaintiff still had pain in his neck, going down into his back, knees and feet, and he started to develop severe depression. He was treated with Cymbalta and also Duloxetine.
51 In September 2010, Mr Bowyer gave the plaintiff injections into his feet. The plaintiff continued to see Dr Warner monthly and was prescribed Cymbalta, Panadeine Forte, Energine and Diazepam. Further, he took Sandomigran for his migraines and also Celebrex. The plaintiff then had constant neck pain going into his shoulder. He had pain all the time and if he moved his neck the pain became more severe. He had restricted movement and had difficulty twisting and looking up and down.
52 The plaintiff’s back was painful all the time and he had restricted movement. He found he could not sit or stand for any length of time.
53 Both the plaintiff’s knees hit the steering wheel and were painful but the right knee was worse. Further, he had pain in his legs and feet. However, he found the neck and back was worse. Before the accident, the plaintiff was going to return to full-time work but because of the accident had been unable to do so.
54 As an electrician, in order to perform any physical work, the plaintiff had to be able to move his neck and back and bend and look up and down. Further, he had to crawl through roofs and also to lift articles and his tools, which he was not able to do.
55 In addition, the medication the plaintiff was taking affected his ability to work and he also had loss of concentration and memory and suffered from depression and anxiety. The plaintiff thought he was presently unable to work, though was hopeful in the future he might be able to do some part-time duties.
56 Between 2007 and 2009 he was having difficulties with his right knee and was receiving treatment, though it was improving. He was able to have a reasonable social life, going to films, the theatre and restaurants. However, since the accident, he had difficulty sitting or standing and going out to social activities. He was living with his mother, although he saw his girlfriend a number of times during the week. However, his social life had been greatly restricted. He had difficulties with walking far and working on his car and he had become depressed and anxious.
57 The plaintiff did very little around his parents’ house and did not do any of the heavy work or cleaning the bath or shower. He used to like gardening but he now did very little. He tried to do small tasks around the house. The plaintiff’s sexual life had been greatly restricted due to his back and neck pain.
58 The plaintiff swore a third affidavit on 21 August 2013. Having confirmed he had given a quote on the property on the said date, the plaintiff described how some months before the accident, he had attended a business course so he could set up his own business as an electrician. Further, he was going to be a subcontractor to Michael Harken. The plaintiff believed he was fit to work as a self-employed or subcontractor electrician.
59 The plaintiff has continued to see Dr Pop regularly and, occasionally, he sees Dr Warner. The plaintiff takes Cymbalta, Valium, Panadeine Forte, six to eight a day, Imigran for migraines, and Maxolon and Celebrex. Further, he still has hydrotherapy and goes to the sauna and spa.
60 The plaintiff is presently in receipt of a disability pension.
61 The plaintiff has tried to see how he would cope working with light duties. He helped out a friend, Peter McCormack, a plumber. The plaintiff was only able to do light duties two to three days and had to stop. Some time later, he tried working for a number of days but then had to stop again due to the severe pain in his neck and low back going to his leg, and his severe migraines.
62 The plaintiff continues to have pain in his neck and low back, together with restriction of movement. He finds if he tries to do anything he has severe pain in his neck and low back. Furthermore, he has pain going into his shoulders from his neck and also going down from his back into his leg. He also suffers from regular debilitating migraines emanating from his neck and he has problems with concentration and memory.
63 The plaintiff’s legs are still painful and his feet are sore. Sometimes his shoulder pain goes down his arm. However, his neck, low-back pain and migraines have stopped him working.
64 The plaintiff’s social life is greatly restricted and he just spends time with his girlfriend and sometimes visits friends. He tries to cope with the pain and tries to mask it as much as he can. He cannot sit or stand for long. He drives, but when driving long distances, he has to stop and get out and walk around.
65 In cross-examination, the plaintiff confirmed he injured his left knee in the 1985 accident and ACL surgery was performed by Mr Brink that year. He thought he had mentioned that in his affidavit.[3] The plaintiff thought his knee recovered pretty well from the 1985 operation.[4]
[3]Transcript (“T”) 21
[4]T25
66 The plaintiff agreed he had neck pain in 1985 but he had not had neck pain since. He developed migraine headaches following the 1985 accident and he had problems speaking for a couple of years. He denied that migraines had been ongoing since then; he had had lapses in between and they come and go.[5]
[5]T22
67 The plaintiff was asked about an attendance at Barwon Hospital on 6 October 1987, complaining of a sore back and headaches. He recalled the attendance, which he stressed related to an injury to his back whilst working at the Water Board when a co-worker dropped a ladder and hit him on the back.[6]
[6]T23
68 The plaintiff agreed he attended Geelong Hospital on 27 June 1988 complaining of headaches. He could not remember that attendance, but agreed that from time to time his headaches were so bad he could not work.[7]
[7]T24
69 The plaintiff could not recall an attendance at Geelong Hospital on 7 October 1988 complaining that his left knee was still sore. He had been playing football and doing a lot of activities so he might have aggravated his knee at some time. The plaintiff thought he probably stopped playing football in his early twenties but he did get back to football after the 1985 accident.
70 The plaintiff could recall, on 1 March 1989, falling at work and hurting his right shoulder and that when he went to hospital he could not move it.
71 The plaintiff agreed he attended Geelong Hospital on 20 January 1989 with a complaint of right shoulder pain which he thought he had for about six months or so after that.[8]
[8]DCB 16
72 The plaintiff accepted it could be right that he attended Geelong Hospital on 1 June 1989 complaining of migraines over the last few weeks.
73 The plaintiff could recall that in June 1990 he had a motor vehicle accident when his car hit a truck. In terms of injury, the plaintiff explained - It was “just sort of shock from the accident really.” He had one little cut. He did not remember complaining of left knee pain, right arm pain and neck pain.[9]
[9]T26
74 The plaintiff agreed this accident was described in his second affidavit as the second motor accident when going to work with the Water Board.[10] He was pretty good after that accident.
[10]T26
75 The plaintiff could not remember hitting a parked car and then going to Geelong Hospital on 1 September 1991. When given more detail, he could vaguely remember he hit his right knee against the dashboard and he had a swollen right knee and a painful right jaw because he hit his mouth on the steering wheel. The pain would have been in the plaintiff’s knee because he remembered hitting the steering wheel.[11] He accepted there was no reference to this accident in his affidavit and it just slipped his memory.[12]
[11]T27
[12]T28
76 On 22 August 1992, the plaintiff attended Geelong Hospital. He could remember reporting having rolled his car at 40 kilometres per hour. He did not really remember an injury from that accident. He agreed with the records that indicated he had a sore forearm with worsening pain and pins and needles and some pins and needles in his hand.
77 The plaintiff still has forearm pain coming down from his shoulder.[13] He could not recall complaining of forearm pain after the 1992 accident. He agreed there was no mention in his affidavit of the accident rolling the car. He just did not remember it.
[13]T29
78 The plaintiff could not remember injuring his knee bushwalking in 1993.[14]
[14]DCB 23
79 The plaintiff could recall an attendance at The Royal Melbourne Hospital on 12 August 1993 but could not recall which part of his body he hurt. He was pretty sure it was his neck.[15] He could not remember reporting sharp pains in his neck and a sore lower back and having problems in his left hand. He did not know whether he had an x‑ray of his neck at the hospital.
[15]T30
80 The plaintiff did not think about this accident and did not remember it; that is why it was not in his affidavit.[16] He accepted those notes were correct but he could not really remember being put in a neck brace.
[16]T30
81 The plaintiff could remember, on 8 August 1995, he got a nasty electric shock at work. He remembered 20 minutes’ loss of consciousness. He thought he hurt his shoulder and remembered having treatment. He was pretty sure it was his right shoulder. The plaintiff put in a claim.
82 The plaintiff could not recall telling Dr Rabinov, in relation to this claim, that he had a sore neck which was treated by a physiotherapist.
83 The plaintiff was shown the Claim Form relating to the electric shock incident. He had written that the part of his body affected was his left arm and neck.[17] He mentioned he had previous problems with neck pain as a result of a car accident in 1985. The plaintiff agreed he hurt his neck in that incident but had not mentioned it in his affidavit. He denied he was deliberately leaving things out of his affidavit that would complicate his claim.
[17]T33
84 The plaintiff thought an injury to his right shoulder in February 1996 was the same incident because he could recall having some physiotherapy at that time.
85 The plaintiff could not recall another incident in 1996 when he was working standing on a toilet fixing a light and he fell and hurt his right arm, ribs and shoulder. He thought he had physiotherapy for the one incident.
86 The plaintiff was taken to a statement he signed on 19 March 1996 where he described the incident falling off the toilet. Having been reminded, he could recall having damaged ligaments in his right shoulder in that incident working at the Victoria Hotel. He did not go back to work because he was wrongfully dismissed. The union came in to help him and he was re-employed, then the union left and the plaintiff was dismissed, so he filed a claim for wrongful dismissal.
87 The plaintiff did not mention this incident in his affidavit as he had forgotten it.
88 The plaintiff could recall being in an accident riding his bike on 20 September 2000 when hit by a car. He hurt his right knee but he could not remember hurting anything else.
89 The plaintiff agreed he saw Dr Suss in North Melbourne and told him he was hit by a car and thrown over the car. The plaintiff agreed, as Dr Suss reported, he cut his forehead and suffered soft tissue injury to both sides as well, as his neck and right shoulder, and a little bit of soft tissue injury to the left shoulder and he had lower back, knees and calves’ pain. [18]
[18]T36
90 The plaintiff agreed he continued to have right knee and shoulder pain for some time after that accident, maybe a few months.
91 The plaintiff could recall, on 28 June 2001, he had another accident at work when carrying a ladder. He just remembered hurting his right foot. He accepted though, as Dr Suss had recorded, he also hurt his right heel and re-injured his right knee. He did not remember having developed migraines then.
92 The plaintiff explained he hurt himself carrying a ladder when he must have overextended going up a step and out of nowhere, he got sharp pain in the sole of his foot and also some knee pain. That was not the same sort of foot pain he has now and it went away. The incident was not in his affidavit because he had forgotten it.
93 The plaintiff agreed he hurt his knee getting off a tram on 23 July 2001. He agreed he attended Dr Suss, who sent him to an orthopaedic surgeon, who gave the plaintiff a brace for his left knee. The plaintiff had forgotten about this incident and that was why it was not in his affidavit. He denied he left things out that he thought were not going to help.[19]
[19]T38
94 The plaintiff agreed that the injuries and pain he feels in his body are causing him to be depressed and agreed there had been other things in his life that had caused mental anguish.
95 The plaintiff agreed criminal charges against him were stressful and upsetting and he was too embarrassed to discuss them with doctors.[20] The plaintiff received six months’ jail for the first offence and no sentence in relation to the second, save for a $3,000 fine.
[20]T40
96 The plaintiff denied any psychiatric treatment or medication before the accident.[21] The plaintiff could not recall, but he must have been prescribed Lovan by Dr Sowerby in 2004. The plaintiff thought he might have taken the tablet for a couple of days. The doctor was telling him he was depressed and he conceded he might have been just a little bit depressed.
[21]T41
97 The plaintiff agreed he told the neurosurgeon at The Royal Melbourne Hospital in October 2004 that since the 1985 accident, he had had neck stiffness and headaches persisting, coming and going, ever since then.[22]
[22]T43
98 The plaintiff was surprised that he was having pain from the 2002 accident two and a half years later in his right knee, wrist, neck, right foot and calf, and clunking ankles as The Royal Melbourne Hospital notes indicated. He did not remember.[23] His memory was just bad in general.
[23]T44
99 The plaintiff was asked about an attendance with a rheumatologist, Dr Barraclough, in November 2004, at which time he reported major ongoing problems of neck and trapezius pain and also some right knee and wrist pain and his right foot was sore. The plaintiff accepted the accuracy of this note which he agreed was contrary to his recollection about the ongoing effects of the 2002 accident.
100 The plaintiff thought he was in employment in March 2007 when he had the dirt bike accident and was pretty sure he was working.[24] That was the first time he knew of any right cartilage damage.
[24]T45
101 The plaintiff was taken through the history to Mr Mander on examination in September 2007. He confirmed the right knee problem but did not remember being very depressed. He then said, because of his knee problems, he was depressed because of his inability to do things. The plaintiff had knee surgery in March 2008, funded by his disability insurer.[25]
[25]T47
102 The plaintiff agreed he was asked to see Mr Khan in September 2008. He must have been referring to Lovan when he told Mr Khan he had had treatment for depression prior to that date. He had recovered from the depression and it was not really holding him back.[26]
[26]T49
103 The plaintiff could not remember saying to Mr Khan that it was in between jobs when the 2007 accident happened, but he was pretty sure he was working. He then went on to say he thought he was making pushbikes for underprivileged children in the NEIS scheme.[27] He could not recall why he was not working as an electrician. He could not find any work at the time, he suspected.[28] The plaintiff then went on to say he thought he was pretty sure he was working for an electrical company called Team Solutions at the time of the 2007 accident[29] and then just said again it was NEIS.[30]
[27]T50
[28]T51
[29]T51
[30]T52
104 The plaintiff must have told Mr Khan he had developed pain in his low back with pain down his calves but he could not remember.[31] The plaintiff could recall getting depressed while waiting for knee surgery. Six months after the surgery, when he saw Mr Khan, the plaintiff agreed he had difficulty kneeling, bending, squatting or walking and driving for long distances. His thigh muscle had wasted. He was sleeping poorly. He had a throbbing ache in his right knee in September 2008 and an ache in his calf, and the right knee pain was always constant and he could not sit for long in one position. He probably had an ache in the knee and back.[32] The plaintiff also told him he had some ache in the right side of his neck and pain in his neck and an ache in his lower back.
[31]T52
[32]T53
105 The plaintiff did not remember complaining of aching pains under the surface of his feet but he has pain there now. He was not too sure when the foot pain started.[33] It has got more severe now but he had some foot pain back then and he did have pain in his feet before the 2009 accident.
[33]T54
106 The plaintiff was asked about the disability statements. The surgery that was referred to with Mr Bowyer in February 2009 was just the injections.[34] Mr Bowyer was looking at the plaintiff’s feet and knee. The plaintiff agreed that he had foot pain “++” as a condition prolonging his recovery. Bilateral foot pain was noted as a problem and the pain in his feet was enough to stop him from working.[35]
[34]T58
[35]T60
107 The plaintiff also agreed in September 2008 that he had described “back pain” was prolonging the recovery of his condition. It was not a mistake when he ticked that he was currently fit to do light duties. Even though he had some back pain, he could do some seated work.[36]
[36]T61
108 The plaintiff was not sure whether he was on total disability payments at the time he gave the quote.[37] He did not think he discussed a return to work with his doctors in April 2009.
[37]T62
109 The plaintiff confirmed he was going to do the quote for a friend, Mr Munroe, for a wiring job on his unit. It involved wiring on a unit that Mr Munroe owned. The plaintiff gave him the quote on an invoice sheet[38] and gave him the copy. The plaintiff did not know if he was going to get the job. He knew Mr Munroe had to make a decision. The plaintiff agreed he had not made a deal with Mr Munroe and he had not accepted the quote.[39]
[38]T63
[39]T64
110 The plaintiff would have seen Mr Munroe every couple of weeks in the years before he gave the quote. He was a long-time friend of the plaintiff and they had met through friends.[40]
[40]T65
111 Mr Munroe rang the plaintiff and told him about the quote.[41] The plaintiff thought that the disability payments had expired at the time he gave the quote. If he had not got the job, he would have just found more employment somewhere.[42]
[41]T66
[42]T67
112 The plaintiff agreed he did not lose consciousness in the accident and he had always known he did not get knocked out.[43] In one TAC claim form, the plaintiff described having lost consciousness for two minutes. He agreed he did not tell the hospital or the ambulance of any loss of consciousness but then went on to say he wrote “loss of consciousness” because he thought he “had like a loss of memory from the time of getting out of the car and being in the accident”.[44]
[43]T67
[44]T70
113 The plaintiff agreed that he was taking Di-Gesic and Valium before the accident which might have been for his feet and knee and maybe his neck.[45]
[45]T70
114 The plaintiff confirmed he thought disability payments had stopped so many weeks beforehand but he could not remember.[46]
[46]T71
115 The plaintiff left the answer blank on his first claim form as to whether he had an offer of employment or was due to commence employment. The plaintiff could not explain why he did that[47] and in the other claim form he named Michael Harken, who was going to be the man to whom he would subcontract for the work on the property. Harken would have to sign the paperwork as the plaintiff did not have the necessary licence.[48]
[47]T72
[48]T75
116 The plaintiff put in the employment start date of 24 April 2009 because Mr Munroe may have accepted the quote. The plaintiff then said he thought that Mr Munroe may have accepted the quote[49] and then said he could not recollect if he accepted it or not and to the best of his memory, the quote had not been accepted. The plaintiff could not remember. He had a lot going on.[50] He denied he just made up a date.
[49]T76
[50]T77
117 The plaintiff agreed he had seen Mr Bowyer for two injections before the accident in early 2009. They did not really help enough, not permanently.[51] They helped for a little while. The plaintiff agreed he had this problem in his feet before the 2009 accident and he still has it.[52]
[51]T78
[52]T79
118 The plaintiff agreed the pain gets worse if he spends a lot of time on his feet walking around and standing and that is part of the reason it would make it very difficult to work as an electrical contractor.
119 The plaintiff agreed he was not in distress at the hospital after the accident. He agreed he did not have bruising on his knees[53] but then said his knees hit the steering wheel.[54] He agreed he told the hospital he had pain in his forearms. The plaintiff agreed he told his general practitioner he felt sore all over and denied that was the case before the accident.[55]
[53]T80
[54]T81
[55]T82
120 The plaintiff agreed he had been having migraine headaches on and off since 1985.[56] He got relief from the anaesthetic injections along his spine for probably a week.[57]
[56]T83
[57]T83
121 The plaintiff has pain – it was a constant ache.[58] He was not trying to exaggerate the affect on his body of the accident when he saw Dr Kostos; it was just how he felt at the time. The plaintiff still has sore forearms. His knees are nowhere near as bad as they were. He has pain in both knees.
[58]T84
122 The plaintiff agreed he told Dr Stockman in 2011 that he had pain in both forearms that would prevent him working as an electrician. The plaintiff’s knee pain is now not as bad as it was, but he told Dr Stockman he had bad knee pain.[59] The knee pain would prevent him working as an electrician.
[59]T85
123 When asked about the history to Dr Kaplan about other car accidents, the plaintiff may only have told him about the 1985 accident, because he had pretty much recovered from the other accidents. He was getting back to work, but in the 1985 accident, he had severe injuries.[60]
[60]T86
124 The plaintiff then agreed that if the 2007 accident kept him off work for two years and required surgery, it would be a pretty serious accident.[61]
[61]T86
125 The plaintiff agreed his current hand pain would make it difficult to work as an electrician.
126 The plaintiff confirmed he started a new relationship in 2011 but denied he was particularly social.
127 The plaintiff confirmed he had done a little bit of recent plumbing work for Peter McCormack. The work made the plaintiff feel better psychologically. It was not very tough work, it was just passing clips. Just keeping his concentration was hard. The plaintiff also had to put lagging on pipes and it was too hard.[62]
[62]T88
128 The plaintiff could do a few hours of work a week. He stopped the job with his mate because he had a few breakdowns and he was just too sore, just physically sore in his back and neck and it was hard looking up. The plaintiff had pain in his back, neck, shoulders, feet and knees, hands and wrists. It just got too much. He denied he did not continue work because he had the court case coming up.
129 In re-examination, the plaintiff confirmed his problems with working for McCormack, aggravating his injuries to his back and neck. The main part of his body affected was his neck, and back pain going down his legs.
130 The plaintiff confirmed he thought he would be able to work before the accident. He was excited to get back into work and felt he could push himself through anything he needed to do.[63] He felt he could do the quote over the time span that had been allowed. He was just searching for work. He had spoken to Michael Harken about doing subcontracting.
[63]T90
131 The plaintiff confirmed his disability statement signed on 14 January 2009 where he answered he thought he was fit for full duties in two to six months.
132 The plaintiff explained the difference between the pain in 2007 and in 2009 is that 2009 is much more debilitating, more migraines, much more frequently. The pain is right into his neck and shoulder and it is just constant through his neck and back and now he constantly has to medicate himself to keep it under control.
133 After the 1985 and 1990 accidents, the plaintiff was able to get back to work, and the pain alleviated to a certain extent. Since 2009, it is much more intense and he has to rely on medication a lot more. The pain from 2009 just fluctuates. It is not getting any better or worse.
The Plaintiff’s gross earnings
Financial year Gross amount 2005 $49,991 ($1,955 DSS) 2006 $49,447 2007 $31,324 ($2,550 DSS) 2008 $69,979 ($993 Newstart) 2009 $40,954
The Plaintiff’s lay evidence
134 Mark Munroe swore an affidavit on 20 August 2013. He was required for cross-examination.
135 In April 2009, Mr Munroe was engaged as an interior designer on a project at the property. That project involved, amongst other things, electrical work. As part of that work, he obtained quotations from three electrical contractors, one of whom was the plaintiff, trading as Bayside Electrical.
136 Mr Munroe recalled he attended a meeting with the plaintiff at the property where the plaintiff provided him with an estimate of the cost of the works.
137 Mr Munroe was informed shortly after, that the plaintiff sustained injuries in the accident and that he was not able to carry out the works and therefore he engaged other contractors.
138 The plaintiff had previously carried out minor electrical jobs for Mr Munroe, who was very happy with the quality of the plaintiff’s work. Mr Munroe believed the plaintiff would have been engaged for this job had it not been for his accident.
139 Mr Munroe swore a statutory declaration on 29 January 2010 advising that he had obtained a quote for electrical repairs on behalf of Tuk and Ekmee Multong in his capacity as project manager for the property. Repairs were quoted by three tradesmen including the plaintiff.
140 In examination-in-chief, Mr Munro confirmed he met with the plaintiff at the property. The plaintiff then gave him an estimate of around $3,500 to $4,000 which was in the same range as the other electricians. He told the plaintiff he would have to run it by the owners to see if they were all right.
141 The plaintiff was in the front running because he had worked with Mr Munro on small jobs previously re-wiring cafes.[64] He had a professional relationship with the plaintiff; he had known him for about twenty years. They did not socialise or go out and he had not really seen him since seeing him at the property.
[64]T93
142 In cross-examination, Mr Munro said he spoke to the plaintiff but not all the time and he really has not kept up with him since.
143 Mr Munro confirmed being given a verbal quote or an estimate and he told the plaintiff he would need to put in a formal quote. The plaintiff was going to provide one but apparently he had the accident. Mr Munroe then seemed to say that he did recall the plaintiff give him a quote and he presented three quotes to the owners of the property. He was given something by the plaintiff in writing.[65] He does not have a copy of it.
[65]T95
144 Mr Munro did not know Michael Harken but he knew that the plaintiff needed a licensed electrician under whose name to do the job. Mr Munro did not know the plaintiff was on total disability payments, but knew he had had several accidents but did not know his situation. He thought the plaintiff was doing odd jobs and working and getting social security.[66]
[66]T98
The Plaintiff’s medical evidence
145 Dr Warner from St Leonards Surgery provided a number of reports. He first saw the plaintiff after the accident on 24 April 2009.
146 Dr Warner noted the plaintiff did not strike his head, and there was no loss of consciousness. He felt sore all over at the time. On initial examination, he was complaining of left-sided neck pain, stiffness between his shoulder blades, and pains in both legs.
147 In May 2009, the plaintiff attended with stiffness in his neck and back. In July 2009, he complained of worsening pre-existing right knee pain since the accident.
148 The plaintiff was reviewed on numerous occasions with ongoing complaints of neck and low-back pain, episodic headaches, ongoing knee and foot pains, low moods, reduced libido and erectile dysfunction.
149 In June 2010, Dr Warner noted the plaintiff was then contemplating restarting work as an electrician.
150 Dr Warner saw the plaintiff in July 2002, when he gave a history of neck injury following two car accidents in 2001 and 2002. The plaintiff was complaining of neck, right elbow, right knee and ankle pains at that stage.
151 Dr Warner noted the plaintiff had previously been diagnosed with depression in 2003 following previous accidents and financial problems.
152 Dr Warner thought the plaintiff’s extensive past history of multiple injuries and lack of radiological evidence of a new injury made it difficult to state exactly what injuries were new since the 2009 accident. He thought it likely the latest accident had aggravated old physical injuries and a mood disorder.
153 Dr Warner thought, due to multiple road traffic accidents and non-road traffic injuries, together with chronic mood disturbances, the plaintiff’s recovery was likely to be protracted and incomplete.
154 Dr Warner noted that in 2002, the plaintiff was seen by a neurosurgeon following a transport accident, and a C6 osteophyte fracture was found with some widening at the C5‑6 disc base. Dr Warner noted the plaintiff suffered from both migrainous and non-migrainous muscle tension-type headaches secondary to his cervical spondylosis and depression.
155 Dr Warner thought the plaintiff’s depression appeared to be as a result of ongoing pain and general state of health, and records indicated his depressed mood was noted following previous transport accidents around 2000 to 2002.
156 Dr Warner agreed with Dr Kostos that the diffuse pains were suggestive of fibromyalgia, which was often associated with a depressed mood.
157 Dr Warner reported in May 2012 when the plaintiff complained of migraines consisting of devastating headaches which were less frequent since commencing a new medication.
158 The plaintiff also described another type of headache consisting of a dull pain affecting his head and neck, anxiety symptoms, anger at not being able to work as an electrician, lack of sex life, being unable to maintain an erection due to back and leg pains, and his back and feet being sore all the time.
159 The plaintiff was then taking Panadeine Forte, Celebrex, and diazepam when necessary. He had migraine medication and was taking medication for depression.
160 Dr Warner then thought the plaintiff’s generalised pain symptoms had not significantly improved since the first time he was seen following the 2009 accident in July. Dr Warner thought they were likely to remain so for the foreseeable future. What had improved was his mental state. Though anxious, the plaintiff stated he was less depressed and appeared more accepting of his condition.
161 When asked to comment on what was related to the 2009 accident, Dr Warner said that that was a hard question to accurately answer. The plaintiff had suffered from migraine-type headaches prior to that accident; however, they had occurred more frequently since. He noted the plaintiff did not suffer from the regular daily tension-type headaches, nor did he suffer from generalised aches and pains prior to this accident.
162 Dr Warner noted the plaintiff had previously suffered from a depressed mood, neck, back, elbow and knee pains following others accidents, and that the latest accident may therefore have aggravated previous injuries.
163 The plaintiff has consulted Dr Warner’s colleague, Dr Pop, since May 2012. The plaintiff had reported to Dr Pop ongoing headaches and back pain, and he had been administered emergency doses of intramuscular Tramadol for pain relief of his headaches. The medication then was Celebrex, Cymbalta, diazepam, Imigran, Panadeine Forte, one to four a day, and Sandomigran.
164 David Bowyer, orthopaedic surgeon, reported in October 2009 that the plaintiff underwent a right knee arthroscopy the year before and had some problems with ongoing knee pain since then. Mr Bowyer had seen the plaintiff a few times in relation to both his knees and feet.
165 Mr Bowyer noted, since the accident in 2009, the plaintiff had ongoing problems with his neck, and also back pain. Following examination, Mr Bowyer suggested a corticosteroid injection for his likely plantar fasciitis might be worth trying, and he referred the plaintiff to Dr Vagg for management of his back and neck pain but also generalised pain and significant functional impairment.
166 On review in February 2010, the plaintiff’s right knee continued to be painful, as were both feet. Mr Bowyer noted that an injection in the plantar fascia bilaterally in November the previous year did not make any difference. The plaintiff continued to have neck and low-back pain.
167 Mr Bowyer wondered if the plaintiff did have plantar fasciitis and the injection was just not successful, but also wondered about the contribution from his spine. He suggested further investigation.
168 In his June 2010 report, Mr Bowyer noted he had originally seen the plaintiff twice before his car accident, in February and March 2009, when he presented with complaints of right knee pain and bilateral foot pain. Following those attendances, the plaintiff underwent investigation and treatment with injections of corticosteroids.
169 The plaintiff then saw Mr Bowyer on 28 May 2009. He described what sounded like a whiplash or hyperextension-type injury to his cervical spine, and his knees were driven into the dashboard. The plaintiff reported that that accident aggravated his bilateral knee and foot pain, as well as his back and neck pain.
170 On examination in October 2009, the plaintiff complained of bilateral foot and knee pain, as well as ongoing back and neck pain, and Mr Bowyer suggested further injections in his feet, and referred him to Dr Vagg.
171 In February 2010, the plaintiff advised the injections had not helped and he had ongoing heel and right knee pain, as well as pain in his lower back and neck.
172 Mr Bowyer noted the recent MRI with findings at C5 and C6. He had last seen the plaintiff in February 2010. Mr Bowyer noted the plaintiff had significant pain in several regions of his body, and he had suspected the short-term prognosis would be poor to moderate, given the chronicity of the plaintiff’s pain since the accident.
173 There was a re‑examination requested by the plaintiff’s solicitors in June 2012.
174 Mr Bowyer reported the plaintiff continued to have pain in multiple body regions since last seeing him in June 2010. Mr Bowyer noted the plaintiff had ongoing problems with pain in multiple areas, and felt he was not making any progress in obtaining treatment or better management of it. He therefore felt the plaintiff needed help with management of the pain, particularly from a multi-disciplinary point of view.
175 At that stage, Mr Bowyer thought the plaintiff’s prognosis for a return to normal function and comfort was limited, given there had not been any changes in the last two years.
176 When Mr Bowyer first met the plaintiff, he was complaining of bilateral foot and knee pain. With regard to the 2009 accident and its contribution to his current symptoms, Mr Bowyer said it was impossible to say the accident was the only cause of the plaintiff’s knee and foot pain. However, he noted the plaintiff’s neck and lower back pain were unknown to him before the accident.
177 Dr Michael Vagg, rehabilitation and pain medicine specialist, first saw the plaintiff in March 2010 on referral from Mr Bowyer.
178 On initial examination, Dr Vagg found the plaintiff had significant tenderness over the facet joints and cervical spine from C2–3 to C5–6, and had widespread myofascial trigger points in his shoulder and neck muscles, as well as thoracic and lumbar muscles, a diagnosis he confirmed by injection of the neck and shoulder trigger points.
179 There was some improvement in myofascial pain on examination in April 2010, but there was tenderness to palpation at C5‑6 and C6‑7, and Dr Vagg therefore requested funding for a remedial branch nerve block procedure, which was approved and took place in September 2010 and reduced the plaintiff’s perceived level of neck pain. Funding for further treatment was refused by the defendant following a diagnosis by Dr Kostos of fibromyalgia.
180 Dr Vagg begged to differ from Dr Kostos, noting that the needle procedure had resulted in greater than 50 per cent reduction in pain, thus it was a successful diagnostic procedure. Dr Vagg thought that in May 2013, the plaintiff suffered unnecessarily from neck-related headaches because the insurer was unwilling to take his opinion seriously.
181 When asked to comment on the plaintiff’s pre-existing condition, Dr Vagg noted that before the accident, the plaintiff was not requiring opioid analgesia. Dr Vagg noted clearly the delay in optimal treatment had the potential to have converted a potentially treatable pain problem into a lifelong disabling condition.
182 To conclude, Dr Vagg believed that, based on the evidence of the plaintiff’s response to trigger point injections, as well as a single set of diagnostic medial branch nerve blocks in the neck, the plaintiff had treatable pain in 2010 which directly related to the transport accident. He noted appropriate treatment was denied by the defendant, and when reviewed in May 2013, the plaintiff’s situation was unchanged, and his level of disability, if anything, was slightly worse, as he was experiencing worse neck-related migraines that he had been with when he first saw him.
Medico-legal evidence
183 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff in August 2003 in relation to car accident injuries from April 2002.
184 Dr Thomas noted the past history of a car accident in 1985 with an injury to the left knee and the left side of his neck. The plaintiff stated he occasionally got neck stiffness prior to the second accident, but was able to keep working and be physically active.
185 Dr Thomas noted the plaintiff had recently commenced a return to work in a casual capacity, working two days a week. He had trialled working one week full-time, on 4 to 12-hour days, but could not cope.
186 The plaintiff then complained of neck pain and stiffness. He said his neck had lost its mobility. He complained of soreness in the back of his neck, and he also complained of low-back pain.
187 The plaintiff complained of pain in his right knee, and the knee ached consistently, and he had poor sleep because of it. His knee had an unusual feeling in it. It clicked and grinded, and it felt puffy, but did not appear swollen. Running was not possible because of pain in his right foot, knee and calf. His right knee was tender. There was no meniscal clicking, and there was mild patellofemoral irritability. The knee was stable. There was no evidence of wasting. The right foot was non-tender.
188 There was a full range of thoracolumbar spine movement. There was some restriction of cervical spine movement. Dr Thomas noted a photocopy of a plain x‑ray of the right knee dated 27 September 2000, which was normal. He noted the plaintiff did not talk about a September 2000 accident.
189 Dr Thomas thought, from a diagnostic point of view, the plaintiff’s problems were primarily in keeping with musculoligamentous strain type problems. He noted the plaintiff had widespread pain complaints, with a very well preserved range of movements in all the affected areas. There was no particular wasting in the quadriceps. There was mild crepitus on the right, which would imply the plaintiff had chondromalacia patella. He had mild restriction of cervical movement, but the history was not typical of a discogenic pain problem, and still more consistent with soft tissue injury.
190 Dr Thomas commented it was difficult to know the role of the September 2000 accident, but the 1985 accident had contributed to a very mild extent, relating to his neck only.
191 Dr Thomas thought the prognosis was reasonable, and he did not think increasing pain would become problematic, and the plaintiff would continue to improve. He thought the plaintiff’s condition had not stabilised from the 2002 accident, and would have thought the plaintiff would be able to increase his work hours gradually over the next six months.
192 Mr Khan, orthopaedic surgeon, first examined the plaintiff in September 2008 on behalf of IUS.
193 The plaintiff mentioned he had been treated for depression off and on and had been involved in a car accident at nineteen, with a range of significant injuries including his left knee and that he had a speech impairment for two years and eventually recovered. Mr Khan noted, apart from that, the plaintiff had had a recent operation on his right knee in March 2008.
194 The plaintiff described previously he had been employed as an electrician by Team Solutions for about six months. At the time of the motorbike accident, he was in between jobs and was unemployed.
195 The plaintiff described rolling his dirt bike injuring the medial side of his right knee. Initially, the plaintiff had considerable difficulty weight bearing and his knee was considerably painful. The plaintiff attended Mr Brink, who examined him a few weeks after the injury. The plaintiff had considerable pain and discomfort in his right knee and he had also developed mild pain in the low part of the back with pain down both calves.
196 After a relatively long period, the plaintiff had surgery by Mr Brink on 8 March 2008 in the form of an arthroscopy and partial meniscectomy.
197 The plaintiff took a long time to recover. He became quite depressed while waiting for the surgery to be done. During the waiting period before surgery, the plaintiff’s knee condition had deteriorated and he noted crepitus and grinding in the retropatellar area and pain down the back of both legs and calves.
198 The plaintiff had been an electrician by trade and had not been able to return to work. However, he continued with some studies and obtained his A Grade licence.
199 The plaintiff had difficulty kneeling, bending and squatting on his knees and walking and driving long distances. Before his operation, Mr Brink noted the plaintiff’s quadriceps had wasted considerably and a quadriceps strengthening program was suggested and the plaintiff had been having physiotherapy.
200 Currently, the plaintiff reported he slept poorly and he had trouble getting to sleep. He had a throbbing ache in his right knee in the retropatellar area. He had an ache in the back of the right knee and calf. The knee pain was constant. He could not sit in one position for too long. He got an ache in the back of the right calf. The plaintiff managed to do some walking; however, he was not able to kneel or squat on the right knee. His knee felt weak and he had difficulty in climbing stairs and he had to walk at his own pace. The plaintiff’s knee frequently swelled up after weight bearing on it for a while. He had to rely on Mersyndol Forte and Panadeine Forte.
201 The plaintiff did home exercises and felt very frustrated as he could not return to work.
202 On physical examination, the plaintiff had a tight feeling in the right shoulder area and an ache in the palm of his hand and thenar area. He had an ache in his lower back and outer aspect of the both sides of his pelvis. He could move his neck well. Thoracolumbar spine movements were reasonably good.
203 The plaintiff had considerable muscular wasting of the quadriceps in front of his right knee. He had retropatellar discomfort. Perkins AAGN was positive. There was no effusion in the knee and the plaintiff had an ache in the back of the joint. Lachman’s test was negative.
204 Examination of the plaintiff’s feet revealed he had aching pains in the under surface of his soles along the medial arches of both feet with tenderness in the balls of the feet extending to the heels. This was aggravated by weight bearing, standing and walking. He had tenderness in the dorsal aspect of the metatarsophalangeal joints of the lesser toes. He had an aching type pain in the back of his heels, the right being more so than the left.
205 Mr Khan had not seen the MRI scan report but, from the available material, he thought the plaintiff had a suspected tear of the lateral meniscus in his right knee. He noted the plaintiff was found to have chondral changes which were confirmed at operation in the medial femoral condyle.
206 Mr Khan noted the plaintiff had an accident when he was nineteen and had apparently made a reasonable recovery and had been symptom free and carrying on with his work until the 2007 motorbike accident, after which his right knee had become considerably painful and swollen.
207 From the available information and the result of his examination, Mr Khan thought the plaintiff had developed a considerable soft tissue injury to the right knee which resulted in post-traumatic synovitis at the joint. He also had mild chondral injury to the medial femoral condyle and developed pain in the retropatellar area gradually. Mr Khan thought surgery was required and the MRI scan had confirmed a meniscal injury.
208 Mr Khan noted that the plaintiff had been limping over long periods due to pain and discomfort and intermittent flare ups of the swelling in his right knee. That had resulted in him developing symptoms of chronic backache and intermittent pain down his legs and calves.
209 Mr Khan noted the plaintiff was also having some symptoms of a chronic strain affecting both legs, having medial arch pains as well as symptoms of metatarsalgia in his feet.
210 Mr Khan considered there were some non-organic factors affecting the plaintiff’s symptoms. From a physical point of view, he thought the plaintiff had mild symptoms of chondromalacia patella and post-traumatic chronic synovitis of the knee. He noted the plaintiff had a partial synovectomy at the time of surgery and still continued to have some pain in the joint.
211 Mr Khan thought the knee felt reasonably stable, even though the musculature was considerably wasted around it, thus confirming that there was a post-traumatic organic problem as an after effect of the injury being the cause of his pain.
212 Mr Khan thought the aches and pains in the plaintiff’s back and calves were secondary to his limping and using sticks and crutches over long periods while waiting for surgery.
213 Mr Khan thought the plaintiff would require a further MRI scan of his right knee and some x‑rays, including CT scans of his lumbar spine to exclude any discogenic cause of his pain. He also noted the plaintiff required assessment of the chronic pain in his feet by way of investigations.
214 Mr Khan then thought the plaintiff was suffering from partial permanent impairment of function as an after effect of his injury. He considered the plaintiff was fit for suitable work and he was developing early symptoms of a Chronic Pain Syndrome. Mr Khan found no features of exaggeration.
215 Mr Khan thought, at the time of examination, the plaintiff appeared to be improving and required an isometric quadriceps strengthening program, carefully performed by a physiotherapist. He thought the plaintiff was not fit for pre-injury duties until his right knee pain came under control, which might be in quite some time.
216 Mr Khan considered the short-term prognosis was guarded as there had been such a delay in surgery. He thought the plaintiff should be allowed to continue with physiotherapy and receive hydrotherapy regularly under supervision. Mr Khan stated the long-term prognosis could not be stated at that stage in view of the plaintiff’s complex symptoms as well some element of depression. He then thought the plaintiff could return to part-time work in three months if the treatment suggested was followed.
217 Mr Khan re-examined the plaintiff in February 2012.
218 The plaintiff told him of a pushbike accident in 2001 where he sustained generalised bruising but did not attend hospital. He had one week off work. He told him about the 2007 motorbike accident with an injury to the right knee and arthroscopic surgery following that, and a torn meniscus was removed. The plaintiff advised he had developed migraines following the first accident, and they had settled down since then, and only occasionally caused problems.
219 The plaintiff also further mentioned a major motorcar accident when he was twenty when he sustained a head injury and fracture of both jawbones and an amputation of part of the right index finger. He also sustained anterior cruciate ligament damage to the left knee which was treated by surgery by Mr Bainbridge – no reconstruction. The plaintiff had lacerations to the shin and knee, and sustained a brain injury, developing a speech impediment, which lasted for about two years. Since then he had had some problems with memory. It took the plaintiff two years to recover from injuries at the time, and then he managed to return to work as an electrician.
220 Prior to the accident, the plaintiff had worked for a construction firm at the Shell refinery. He had put in a quote for some work with the firm, and was called to do work now and then.
221 Mr Khan noted the investigations in 2009.
222 The plaintiff complained of not sleeping well, and continued to have multifocal aches; pain in the neck; headaches; pain in the right shoulder-blade, lower part of the back, with stiffness in his back; tight hamstrings; pain and numbness in both feet; headaches with pain in the back of the head radiating from his neck, and a history of migraine headaches which, after the first accident, had settled down but which had flared up since the 2009 accident. He was getting an increasing degree of low-back pain when he tried to get up after sitting for a while.
223 The plaintiff told Mr Khan of hobbies in the past, including gym, skiing, scuba diving, motorbike riding, photography and swimming.
224 On examination, there was restriction of cervical and thoracolumbar spine movement. Straight leg raising resulted in tightness of the hamstrings at 75 degrees on the right and 80 degrees on the left. There was some retropatellar tenderness, and the plaintiff had an ache going down the back of his legs from the buttocks.
225 Mr Khan thought, as a result of multifocal severe musculoskeletal and ligamentous injury to his neck, shoulder-blades and thoracolumbar spine, the plaintiff had developed flare-up of pre-existing cervical disc degeneration at C5‑6 and C6‑7 with right-sided shoulder blade and referred pain along C5‑6 nerve roots, but without radiculopathy. He thought the injuries had resulted from the neck with referred pain down the back of the scalp with neuralgic-type headaches as well as pre-existing aggravation and migraines.
226 Mr Khan noted the CT scan of the lumbar spine was reported to show L5‑S1 disc disruption to the left, with some irritability of the left S1 nerve root and a broad-based disc bulge at L3‑4, but without nerve root compromise.
227 Mr Khan thought the plaintiff had been left with a Chronic Pain Syndrome due to multifocal joint and soft tissue injuries – a myofascial pain syndrome. The plaintiff had discogenic pain with flare up of facet joint arthropathy in his cervical spine, but without radiculopathy in his upper limbs. He got referred fibro and muscular pain along the right shoulder-blade, emanating from the lower part of the cervical spine. He noted the plaintiff had mild discogenic pain in his lumbar spine due to disruption of L5‑S1 and, to a lesser extent, L3‑4, but without radiculopathy.
228 Mr Khan noted apparently the plaintiff had recovered to a large extent from the effect of his previous injuries in the earlier accidents affecting his neck and back as far as he could ascertain. Mr Khan noted the condition of the right knee had deteriorated and become quite painful since the car accident, and the plaintiff required further investigation.
229 Mr Khan thought the plaintiff required referral to a pain management clinic for appropriate pain control. Mr Khan thought the long-term prognosis was guarded, and the plaintiff was likely to be left with significant residual permanent partial impairment of function as an after effect of his injuries.
230 On re‑examination in August 2013, Mr Khan noted the plaintiff could move his neck reasonably well and he did not measure the cervical spine. There was some restriction of thoracolumbar spine movement, and a straight leg raising test was tight on both sides, with tight hamstrings.
231 Mr Khan noted the plaintiff had a reasonably good result from the arthroscopy in May 2008. Mr Khan noted a pre-injury x‑ray of the right knee and lumbar spine of 3 May 2007 had shown in the right knee there was no evidence of a bony injury, and the x‑ray had been reported to show no significant plain film over the malady. In the lumbar spine, the plaintiff was found to have slight narrowing of the L5‑S1 disc space posteriorly, with only slight narrowing.
232 Mr Khan confirmed his earlier diagnosis and stated the plaintiff was totally unfit for pre-injury duties, and he needed to see pain management specialist, Dr Vagg, for blocks. He thought the plaintiff had a capacity for light work. He noted the plaintiff had pre-existing migraines, the exact cause of which was not clear, but they seemed to have become more frequent since the accident, and he required treatment by a neurologist.
233 Mr Khan also noted the plaintiff had developed increased pain in the pre-existing plantar fasciitis in his heels, and required orthotics.
234 In cross-examination, Mr Khan confirmed he had forgotten in 2012 that he had examined the plaintiff in 2008.
235 Mr Khan was shown an MRI scan of the cervical spine taken in June 2002. He agreed there was significant foraminal pathology at C6-7 and C5-6. He agreed if someone came to see him with neck pain he would say that those findings were probably causative of it.
236 Mr Khan was shown the investigations he organised in 2011 which he agreed showed degeneration at the levels he thought were productive of the plaintiff’s symptoms and demonstrated radiology similar to that shown in 2002.
237 Mr Khan thought the injury had been a bit more severe in the 2009 accident.[67] To analyse the plaintiff’s position post 2009, he had to take into account everything – the symptoms, findings and the presence of previous pathology.[68]
[67]T104
[68]T105
238 Mr Khan agreed that the pathology shown in 2002 was, itself, of sufficient severity to explain why someone might present today with neck pain. He agreed that the plaintiff’s presentation was entirely consistent with the pathology shown in 2002.[69]
[69]T105
239 Mr Khan confirmed that when the plaintiff saw him in 2008, he said he was between jobs at the time of his 2007 motorbike accident.[70] He told Mr Khan he had been treated for depression on and off over the years and he was told of an accident when he was nineteen and another when he hurt his knee in 2007. Mr Khan confirmed the complaints on that occasion, and agreed he was describing in detail the knee.
[70]T106
240 Even though the focus was the knee, Mr Khan had noted neck pain, right shoulder blade pain and problems in the hand, also complaint of aching pains under his feet. Mr Khan confirmed at that stage, he thought the plaintiff had developed chronic backache and that there were some non-organic factors and the plaintiff was developing early symptoms of a Chronic Pain Syndrome. The plaintiff was seeing doctors and controlled by his pain situation so much that he was not getting any obvious relief.[71]
[71]T109
241 Mr Khan thought the plaintiff’s symptoms in 2008 were a little more diffuse and out of the ordinary. If the plaintiff kept on seeing doctors and seeing pain management people, it depended, but he may continue to suffer from that diffuse pain in the years after 2008.
242 On examination in 2008, Mr Khan wanted the plaintiff to have more investigations of his right knee and that is why he thought the long-term prognosis could not be stated.
243 On the second examination in 2012, Mr Khan was told by the plaintiff that he had recovered to a large extent from the effect of previous injuries.[72] Mr Khan understood the plaintiff was looking for work. He agreed he was told of the 2001 and 2007 accident and also an accident the plaintiff had at about the age of twenty. He was also told of the 2009 feet injections.
[72]T111
244 Mr Khan described the plaintiff’s condition as multifocal pain.[73] He agreed that the presentation in 2012 was broadly similar to that in 2008 but thought the plaintiff was a bit worse. His hamstrings were getting quite tight and he was getting other symptoms in his feet. On re-examination in August 2013, the symptoms had persisted and the plaintiff had not got the treatment his doctors had been asking for.[74]
[73]T113
[74]T115
245 In re-examination, Mr Khan confirmed the symptoms complained of by the plaintiff in 2008 and that the plaintiff, at that stage, could move his neck well and there was reasonable movement of the thoracolumbar spine.
246 Mr Khan confirmed the plaintiff had been limping over a long period in 2008 due to pain and discomfort using crutches because of his knee.[75]
[75]T120
247 Mr Khan was then taken to the 2012 report where neck movements were generally slightly reduced compared to the normal range. The plaintiff had a discogenic pain probably causing symptoms in his back. Mr Khan thought the back condition was fairly active and it was causing the plaintiff considerable pain. Fortunately, he did not have any neurological symptoms.
248 Mr Khan thought, given the amount of trauma in the accident, the plaintiff was lucky to get away without getting more severe trauma.[76]
[76]T123
249 Mr Khan confirmed the right knee had been causing the plaintiff a fair amount of pain and distress and the plaintiff would require total knee surgery in the near future.
250 The plaintiff was seen by rheumatologist, Dr Stockman, in April 2011 and re‑examined in September 2012 and May 2013.
251 On initial examination, the plaintiff described the mechanism of the April 2009 accident, and that he hit his knees against the steering wheel and sustained bruising. There was no loss of consciousness. The plaintiff told Dr Stockman that shortly after the accident, he developed rather diffuse pains in both feet, for which he received treatment from Mr Bowyer.
252 The plaintiff, on examination, complained of constant pain at the base of the neck, low-back pain radiating into the right buttock, pain in both forearms, and pain in both knees, especially the right.
253 Dr Stockman had a history of five previous car accidents: in 1995, when the plaintiff was off work for several years, 2000, 2001, 2002 and 2007, motorbike accident.
254 Since the 2007 accident, the plaintiff had remained off work because of the injury to his right knee, and he told Dr Stockman he was about to start work when the accident happened. The plaintiff told Dr Stockman that although he had suffered from neck and back injury in previous accidents, he had largely recovered from those, apart from mild lumbar back pain and pain in the right knee.
255 On examination, there was 50 per cent of normal cervical movement associated with pain. There was diffuse tenderness in the forearms. Movement of the lumbar spine was limited in all directions due to pain. There were no neurological abnormalities, but straight leg raising was limited to about 70 degree bilaterally. Dr Stockman had the 2009 investigations.
256 Dr Stockman described the accident as a high impact rear-end collision which had left the plaintiff with constant neck pain, migrainous headaches, low-back pain and pain in both arms and legs, particularly the right knee. Dr Stockman thought the cause of pain in the plaintiff’s forearms, hand and feet was unclear, but may suggest a Pain Syndrome, and that there may be associated psychological problems.
257 Dr Stockman thought the plaintiff should return to Dr Vagg for further nerve blocks.
258 On review in September 2012, the plaintiff said there had been little change since his last visit. Dr Stockman thought that was the case. He diagnosed cervical spondylosis and lumbar disc degeneration bulge at L3‑4 and L5‑S1. He thought the cause of the pain in the knees, feet and forearms was not entirely clear; however, it was likely to be a Pain Syndrome.
259 Dr Stockman thought the plaintiff was employable but unfit to lift more than 10 kilograms. He thought the 2009 accident was, to a large extent, responsible for the plaintiff’s current injuries or condition. He noted one could be more certain of this if there were pre-existing CT scans of the lumbar spine. He noted the plaintiff did not require strong analgesia before the accident except for pain for infrequent migrainous headaches.
260 On re-examination in May 2013, the plaintiff said his condition was essentially unchanged. His low-back pain was more severe than the neck. There was a 40 to 50 per cent restriction of cervical spine movement and limited movement of the lumbar spine. Straight leg raising was reduced to 70 degrees bilaterally and no neurological abnormalities were found.
261 Dr Stockman noted the plaintiff suffered from significant neck and lumbar back pain, and also had frequent migrainous headaches which were pre-existing but seemed to have been more frequent since the accident. He thought his condition remained unchanged.
262 Because of those headaches, Dr Stockman thought the plaintiff would not be a reliable worker because he is disabled during episodes of migraine, and perhaps more intensive treatment of that condition by a neurologist may be appropriate.
263 Dr Stockman thought the plaintiff’s neck and lumbar back pain were consistent with multi-level disc degeneration. He thought the cause of the forearm pain was uncertain, and it may be a Pain Syndrome. Dr Stockman considered there were significant psychological problems likely to be secondary to chronic pain. He thought the plaintiff could well improve psychologically if he returned to the workforce. Dr Stockman thought the plaintiff could be retrained for alternate work on a part-time basis and was unlikely to be fit to return to his trade as an electrician.
264 Dr Helen Sutcliffe, occupational physician, examined the plaintiff in October 2011 and September 2012.
265 The plaintiff told Dr Sutcliffe he sustained injuries in a motorbike accident in 2007 and had not worked from that time. He also told her of the major accident twenty years ago, bruising in 2001 to his right knee while on a pushbike, another accident in 2002, and in 2007, further injury to the right knee in a motorbike accident.
266 The plaintiff described a high-impact collision in 2009, and complained of constant pain in the neck and upper shoulders, with pain in the upper and lower back, elbows, forearms and hands, and both legs laterally to the feet.
267 On examination, there was restriction in lumbosacral and cervical spine movement. There was no muscle spasm, and tenderness was widespread. Dr Sutcliffe had available 2009 investigations.
268 From the history obtained and following examination, Dr Sutcliffe believed the plaintiff sustained aggravation of degenerative change in the cervical and lumbar spine as a result of the accident. In addition, he appeared to have sustained a myofascial pain disorder with persistent pain, as indicated by the widespread pain and muscular tenderness. She also believed he was depressed.
269 Dr Sutcliffe thought the plaintiff had no capacity for work as a result of the myofascial pain disorder, and also because of the depression, which appeared to be related to pain and disability. She thought the prognosis after this prolonged period of time was poor, and the plaintiff continued to require assistance from a pain physician and a psychiatrist.
270 On re‑examination in September 2012, the plaintiff advised he was trying to go back to work with the assistance of friends. He told Dr Sutcliffe that he had last worked at the time of the accident in April 2009 when he was employed as an electrician with a company in construction work.
271 Range of cervical movement was similar to that previously obtained. There was considerable muscle spasm in the lumbosacral spine, and there was restriction in the range of movement. There was no neurological abnormality.
272 Dr Sutcliffe believed the plaintiff continued with aggravation of degenerative change in the cervical spine and aggravation of lumbar spondylosis as a result of the accident. In addition, he appeared to have some element of referred pain to the left leg. He continued with muscular tenderness and spasm, which was noted to be moderately severe in the neck and back.
346 On examination, the right knee had poor quadriceps. Knee bend was to 90 degrees with discomfort at the back of the knee. There was Grade 1 Lachman for ACL instability. Tenderness was reported on pressure over the medical joint line and pain on rotation. The plaintiff was not able to stand on his toes and could only do a half squat.
347 Mr Mander noted there was no doubt the plaintiff had sustained an injury to his right knee for which arthroscopic examination was the only means of identification and treatment. He thought almost certainly he had suffered a medial meniscal injury and possibly an ACL ligament injury. He thought treatment so far had been totally inadequate and the advice for an arthroscopy was correct for the diagnosed condition. Mr Mander then thought if surgery was carried out, he would anticipate the plaintiff would be able to consider taking up self-employed requirements within three months.
348 Mr Mander noted the plaintiff’s current restrictions as to ladder work and carrying more than 10 kilograms. The plaintiff complained of a constant ache in the right knee day and night, felt a grinding at the back of the knee when he attempted to bend it and he was developing discomfort in the calves and also becoming very depressed.
Earlier investigations
349 There was an x-ray of the cervical spine taken at The Royal Melbourne Hospital on 12 August 1993.
350 It was reported there was degenerative changes present at C6-7 disc spaces, anterior osteophytic lipping and mild loss of disc height. There was normal cervical lordosis preserved and there was no evidence of subluxation and no fracture was identified.
351 There was an x‑ray of the cervical spine on 18 April 2002. There was no evidence of any paravertebral soft tissue swelling and alignment appeared satisfactory and no fractures were seen. Alignment was satisfactory and no fractures seen at the lumbosacral spine.
352 There was an x‑ray of the cervical spine on 30 April 2002. Narrowing of the C6-7 disc space was evident with marginal osteophytes anteriorly and posteriorly at that level. On flexion view, there was a mild angular kyphosis centred at C5-6 with widening of the interspinous distance. It was noted this may indicate disruption of the posterior longitudinal ligament.
353 A right knee x‑ray of 18 April 2002 showed some narrowing of the medial compartment and no fractures were seen.
354 There was a further x‑ray of the cervical spine on 23 May 2003.
355 It was reported lateral views alone had been taken in differing degrees of flexion and extension. Alignment was normal. No subluxation had been generated in those movements. Disc degenerative disease was shown at C6‑7.
356 There was an MRI scan of the cervical spine on the same date. It was noted there was severe white C6-7 neural exit foraminal stenosis with mild canal stenosis at that level. Left C6-7, neural exit foraminae was of normal calibre. At C5-6, there was severe right neural exit foraminal stenosis also seen with moderately severe central canal stenosis at that left.
357 The CSF space around the cord was almost obliterated but there was no evidence of cord flattening or intrinsic cord signal abnormality at that level. The left neural exit foraminae was only mildly narrowed at that level. At the higher levels, the canal was of good calibre and neural exit foraminae were normal in appearance. The craniocervical junction was normal and there was no evidence of compression fracture or epidural collection.
Medico-legal evidence
358 Dr Kostos, rheumatologist, first saw the plaintiff in September 2010.
359 The plaintiff told him about the 1985 accident where he injured his neck, back, knees – more the left. The plaintiff recalled an arthroscopy on the left knee showing a torn ACL, although he did not have it repaired.
360 The plaintiff told Dr Kostos of the 2007 accident where he injured his right knee and underwent arthroscopic surgery performed by Mr Brink. Following that, there was some improvement in his condition. However, the plaintiff claimed the 2007 accident did not aggravate his pre-existing neck and low-back problems.
361 On 21 April 2009, the plaintiff had the subject accident in which his car was destroyed. He was able to get out of the car but he was sore all over.
362 Dr Kostos noted subsequent treatment from the general practitioner and referral to Mr Bowyer, orthopaedic surgeon, whom the plaintiff had seen twice before the accident because of right knee and bilateral foot pain. Mr Bowyer sent the plaintiff to Dr Vagg for local anaesthetic injections along his spine which gave no improvement. The plaintiff described constant pain all over his body. Dr Kostos noted a long history of migraine headaches and that they were more frequent.
363 The plaintiff told Dr Kostos he had been working as an electrician but following the 2007 accident, he was off work for two years and immediately prior to the accident, he had been up to Melbourne to quote and was planning to return to full-time work, but had not been able to do so because of the accident.
364 On examination, neck movements were restricted with discomfort in all directions and that was associated with diffuse midline cervical and bilateral paravertebral tenderness to light touch. The plaintiff’s thoracolumbar spine was straight. All movements while sitting and standing were markedly restricted with pain in all directions. Axial compression produced pins and needles in the plaintiff’s lower back.
365 The plaintiff had diffuse midline tenderness to light touch along his entire thoracolumbar spine and sacrum, together with the adjacent paravertebral areas and buttocks. Both knees showed a full range of movement with discomfort. There were no effusions and Dr Kostos was not convinced the plaintiff had any obvious ligamentous laxity. There was diffuse tenderness of the knees. Straight leg raising was to 30 degrees bilaterally. The plaintiff was able to sit upright with his legs extended in front of him.
366 Neurologically power and reflexes were normal.
367 Noting the plaintiff’s long history of musculoskeletal complaints, Dr Kostos thought, on the basis of his presentation, it was clear that the plaintiff’s predominant problem was that of a Chronic Pain Syndrome with some features suggestive of fibromyalgia.
368 Dr Kostos was not convinced the plaintiff had a specific injury to his spine as a result of the accident and suggested his examination findings had probably been the same for years. He noted there were no specific examination findings in relation to the plaintiff’s knees or feet.
369 Dr Kostos thought it was clear treatment would not confer any benefit at all, as that was typical in chronic pain situations. He referred to Dr Vagg’s request for approval for C5-6 and C6-7 medial branch blocks and commented he thought they were not going help a man with a generalised Chronic Pain Syndrome. Thus, Dr Kostos recommended that liability be denied for this treatment.
370 As Dr Kostos thought there were clearly non-physical factors pre-dominating in the plaintiff’s presentation, and until they were addressed, his condition would never improve. He thought the defendant did not have any liability for ongoing knee and foot problems whatever they may be.
371 Dr Lester Walton, consultant psychiatrist, examined the plaintiff in June 2013.
372 Dr Walton noted the plaintiff seemed to have developed phobic anxiety in relation to bicycle riding following the September 2000 transport accident. He suffered from a generalised loss of confidence in cars. Post-traumatic psychological features had not been very prominent. Dr Walton thought the psychiatric symptoms appeared to have substantially stabilised, noting the plaintiff had been receiving active treatment for the past eight months.
373 In terms of prognosis, Dr Walton commented, in the context of chronic, fairly widespread pain and considerable uncertainty about whether the plaintiff would ever resume employment, he thought the psychiatric prognosis was rather guarded. In relation to the accident, Dr Walton thought it very difficult to determine whether the psychiatric injuries were best described as an aggravation or a recurrence. Dr Walton concluded the plaintiff was properly described as having sustained a psychiatric injury to which the latest transport accident had made a contribution.
374 Dr Walton suspected the current combination of the plaintiff’s enduring pain and his psychiatric difficulties rendered him totally incapacitated for all work, and noted the plaintiff had certainly given up hope of resuming his trade at that point.
The Plaintiff’s disability claim
375 There were a series of continuing disability statements completed by the plaintiff and also the attending physician in support of his claim for benefits under his IEUS policy.
376 On 9 August 2007, the plaintiff described mobility and right knee pain was stopping him working. He said he was not currently fit to perform light duties and estimated being fit in one to two months for alternate duties, and in five to six months, fit for full-time work. Mr Brink filled out a current capacity questionnaire certifying the plaintiff was currently unfit for suitable alternative light duties and estimated that in a month he would be fit for full-time work, describing his restrictions as occasional limp, swelling and soreness.
377 On 23 July 2007, the plaintiff described the same condition was preventing him working and he gave the same answers as to his current employment capacity. Dr Sowerby completed the attending physician’s statement setting out the plaintiff could not work because of right knee pain and that he was not fit for alternative suitable duties. He gave the same prognosis.
378 On 18 December 2007, the plaintiff set out an injury to the right knee and that he was still waiting for an operation. He had back, feet and left leg pain, and depression. The plaintiff thought he was unfit for work and would be fit for suitable duties in one to two months and full-time duties in three to four months. Dr Sowerby noted the plaintiff was awaiting surgery for the right knee and was totally incapacitated and would be fit for full duties six weeks after surgery.
379 The plaintiff’s statement of 4 February 2008 set out unfitness for light duties and fitness for suitable light duties in the future in five to six months. Dr Sowerby thought the plaintiff was totally incapacitated and estimated suitability for alternate and full duties in three to six months, but total incapacity at that stage.
380 The plaintiff, on 3 May 2008, set out he was currently unfit to do light duties and estimated in one to two months he would be, but made no comment about full duties. Dr Sowerby did not set out an estimated time for returning to work.
381 The plaintiff’s statement of 20 May 2008 was largely blank. Mr Brink thought the plaintiff had lingering synovitis and he could see no reason why he should not make a full recovery. He considered the plaintiff had a capacity for suitable light duties.
382 The plaintiff stated on 27 June 2008 that he was currently unfit to do light work and thought he could do so in a month. Mr Brink could not explain the extraordinarily slow recovery and thought the plaintiff would be fit for alternate duties if they were available.
383 The plaintiff stated on 24 July 2008 that he was unfit to do light duties and thought he could do suitable light duties in one to two months. Mr Brink mentioned the plaintiff had developed an acute chronic back problem spontaneously about a week ago, noting an old motorcar accident which he believed was adversely affecting his back. Mr Brink thought the plaintiff would be fit for full duties in one to two months. He considered subjective pain was impacting on the plaintiff’s capacity to return to either light or pre-injury duties.
384 In his statement of 8 September 2008, the plaintiff set out back pain had prolonged the recovery of his condition. He thought he was currently fit to do light work. Dr Sowerby noted there was no improvement post surgery and was looking for a second opinion. He certified partial incapacity.
385 The plaintiff, on 6 November 2008, set out he was suffering from right knee pain and that he was not fit for light duties. His doctor certified him totally incapacitated from 2 November to 30 December 2008.
386 Dr Sowerby completed the plaintiff’s statement of 14 January 2009. He set out the plaintiff was awaiting right knee surgery and was currently not fit for light work. On the physician’s statement, Dr Sowerby described a recent deterioration in the plaintiff’s condition. There was surgery proposed in February 2009 with Mr Bowyer. He noted the plaintiff’s recovery had been prolonged by generalised pain and depression and the plaintiff was to see an orthopaedic surgeon. Dr Sowerby thought the plaintiff was totally incapacitated from 14 January 2009 to 14 April 2009.
387 There were two TAC claims filled out by the plaintiff.
388 The first was signed by the plaintiff on 17 June 2009. The plaintiff listed injuries as follows:
“Neck pain, backache, knee pain left and right, hand pain left and right, injury of both wrists.”
389 There was no answer provided to question 30 – “Did you have an offer of employment or were you due to commence employment at the time of the accident?” The plaintiff set out he was taking Digesic painkillers and Valium prior to the accident.
390 The plaintiff described previous neck pain. Treatment by physiotherapy for prior accident injuries to the neck, back and knees approximately twenty years ago – neck back. Condition number two was injury of the knee from a previous accident – left twenty years ago and right 2007. The third injury was injury to the head from accident approximately twenty years ago.
391 In a note that was annexed to his Claim Form, the plaintiff set out he was seeing Dr Bowyer, orthopaedic surgeon. The plaintiff was paid by Protect at around the time of the accident. IUS Wage Insurance enclosed payslip which ceased just before the accident.
392 A second Claim Form was undated but said by the defendant to have been received on 20 July 2009.
393 The plaintiff set out the same injuries and pre-accident medication as on the first form. He described having lost consciousness for 5 minutes.
394 The plaintiff detailed previous injuries to his neck, right knee and head as set out on the earlier Claim Form.
395 The plaintiff named Michael Harkin as his employer and noted the scheduled employment date was 24 April 2009. He noted the reason for not starting work was injuries and the job had gone.
396 The plaintiff set out he was a subcontractor for electrical work and that neck injuries, back, knees, wrists and head migraines, prevented him from looking for work, noting he had not worked in the two years before the accident.
397 In answer to prior injuries, the plaintiff detailed a sprain to the shoulder and noted he received treatment and also fell off a ladder seven or eight years ago at work.
398 An IUS Pty Ltd payment detail printout in relation to claim number 0170810 set out a start date of 10 April 2007 and payments up until 26 April 2008.
399 The plaintiff made a statement on 13 August 2003 to the defendant in relation to his loss of earnings benefits claim relating to the April 2002 accident.
400 The plaintiff set out he suffered injuries to his neck, back, knees and right arm. He also suffered and continued to suffer psychological problems as a result of the collision and its consequences.
401 The plaintiff described continuing to endure pain, including pain in his neck, shoulders, back and right knee. The pain in his neck was constant, although the intensity of it varied depending on how much activity he tried to do. In other words, he had good and bad days in relation to his neck pain. His shoulder pain always varied in intensity. Occasionally, the plaintiff had pins and needles in his right hand and fingers. The plaintiff also suffered back pain. The pain in his neck and back caused him to wake at night and made it very difficult to get a good night’s sleep.
402 The plaintiff also suffered constant pain in the right knee. The plaintiff described first hurting his right knee in 2000; however, the pain he suffered in that knee, especially in the front of it, had become much more severe as a result of the 2002 collision. Since that collision, he has also suffered a grinding and catching sensation in the right knee which he did not have before that accident.
403 There were a number of certified extracts. On 6 February 2004, the plaintiff was convicted and sentenced to six months’ imprisonment relating to an indecent act with a child under sixteen. On 6 February 2004, at Sunshine, appeal bail was fixed. On 22 August 2006 at Geelong, the plaintiff was committed to trial in September 2006 for an indecent act with a child under sixteen.
404 The plaintiff made a statement on 19 March 1996 in relation to an incident at work in February of that year when he was standing on a toilet seat to inspect a light fitting when he slipped off, twisted to the left then right. His left foot slipped. He put his right arm out to break his fall, and there was a very sharp impact on his right arm and elbow. It took all his body weight. His shoulder was his main concern. He was given two weeks off work but returned to light duties three days later.
405 There were also a number of Facebook entries which the plaintiff was not taken to, but he agreed in cross-examination he was on Facebook.
Overview
406 In this case, where there is a pre-existing spinal condition and also earlier right knee and feet problems, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2009 accident is serious and permanent.
407 In Petkovski v Galletti,[77] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[77][1994] 1 VR 436
408 To reach the threshold of “serious injury”, the plaintiff is required to establish the aggravation from the accident is permanent at the time of the hearing in its effects on the lumbar spine, right knee and feet and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak.[78]
[78](2005) 14 VR 622
409 Obviously when considering the extent of any pre-existing condition, the plaintiff’s evidence is particularly relevant. In this case, a considerable attack was made on the reliability of the plaintiff’s evidence by Counsel for the defendant.
410 Whilst it was not suggested the plaintiff was a fraud, Counsel for the defendant submitted the plaintiff was an unreliable witness and in such circumstances, the objective evidence needed to be looked at closely when considering the plaintiff’s complaints.
411 The plaintiff’s evidence was primarily attacked on the basis of his failure to acknowledge a number of earlier accidents at all in his affidavits, and where reference was made to other earlier accidents, it was submitted the plaintiff’s affidavits understated the severity of the injuries suffered in those accidents.
412 I accept this submission.
413 Whilst the plaintiff cannot be criticised for not mentioning every one of his numerous accidents and incidents in which he suffered injury, there were significant omissions and understatement by him of the effects of various injuries which were deposed to. His affidavit evidence was at times at odds with what he conceded in cross-examination to be the true situation.
414 Significant matters not mentioned by the plaintiff in his affidavits included the injury to the left knee in 1985 requiring surgery, a number of attendances at the Geelong Hospital for headaches, earlier complaints of neck and back pain and his involvement in other accidents.
415 It was not correct as the plaintiff deposed in his first affidavit that between 1995 and the accident, he worked as an electrician. Further, the plaintiff deposed that following the 2002 accident, he had two and half months off work, when the true situation was he did not work for over two years.
416 The plaintiff described recovery from the 2002 accident when he was still complaining of significant problems to Dr Baker in 2003, Dr Thomas and Dr Barraclough in late 2004.
417 In his statement of August 2003, the plaintiff described injuries to his neck, shoulders, back and right knee and ongoing problems in relation thereto following the 2002 accident.
418 On occasion, the plaintiff’s viva voce evidence was such that he appeared to give answers “on the run” which were inconsistent and just not credible.
419 Having initially agreed he did not lose consciousness in the accident, and that he reported this was the case, the plaintiff was shown his undated Claim Form where he described a 2-minute loss of consciousness. He then said he had memory loss from the time of the accident to when he got out of the car.
420 It is unclear whether the plaintiff actually gave Mr Munroe a quote and what was the status of the job at the time of the accident. Further, the plaintiff gave confusing answers as to whether he was working at the time of the 2007 accident, having told Mr Khan he was between jobs.
421 Medical practitioners who have reported in this case have been given incomplete or inaccurate histories.
422 I am mindful of what was said by the Court of Appeal in Dordev v Cowan[79] in relation to the plaintiff’s credit in this type of case. As Chernov JA said:
“… a plaintiff’s credibility is relevant not only to the question whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.”[80]
[79][2006] VSCA 254
[80]at paragraph [14]
423 Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
The spine
424 The main focus of the plaintiff’s application was the impairment to the spine, with counsel relying mainly on the lower back.[81] It was submitted that the accident was “the straw that broke the camel’s back”.[82]
[81]T158
[82]T147
425 Following earlier accidents, the plaintiff had been able to return to work but after the 2009 accident, he had been unable to do so as a consequence of his back injury.[83] Further, it was submitted there was significant pathology to the low back after the accident with a prolapse in Mr Khan’s view at L5-S1.
[83]T149
426 Counsel for the defendant pointed out however that the radiologist concluded there was no significant lumbar stenosis.[84]
[84]T162
Previous back condition
427 The plaintiff deposed to some low-back pain after the 2007 accident. He made no mention of the pain being due to using crutches, as Mr Khan described.
428 In cross-examination, the plaintiff recalled injury to his back in 1987 attending Geelong Hospital, suffering back pain in 1993 and injuring his back in a bike accident in 2000, as Dr Suss noted. The plaintiff complained to Mr Khan in September 2008 that he had developed pain in his back going down to his calves and that he had an ache in his lower back.
429 In his September 2008 statement in support of his disability claim, the plaintiff set out back pain was prolonging his recovery.
430 I accept, as Mr Dooley stated, that the plaintiff suffered soft tissue injuries to his cervical and lumbar spine in the accident and that there was an aggravation of pre-existing degenerative change.
431 However, I am not satisfied the aggravation was “serious”.
432 Whilst he may have experienced increased pain, any pain relating to the aggravation and any consequences thereof are not “serious”.
433 I do not accept the plaintiff is unable to work because of his back.
434 I am not satisfied the plaintiff was working at the time of the 2007 accident. He told Mr Khan he was between jobs and his viva voce evidence in this regard was contradictory and unclear.
435 I accept the plaintiff last worked some time earlier in 2007.
436 Because of a number of medical conditions, particularly his knee and feet, I am not satisfied the plaintiff had any real capacity for employment at the time of the accident.
437 There is no medical evidence that the plaintiff was fit for a return to work as at the said date. Dr Sowerby continued to certify him totally unfit for work until April 2009 for the purposes of his disability payments. There was no medical clearance to return to any form of work in 2009.
438 I accept Mr Munroe’s evidence that he offered the plaintiff the chance to quote on the job but do not accept that meant the plaintiff had regained a capacity to return to more regular sustained work.
439 Whilst a range of investigations have been carried out, no specific treatment has been suggested for the plaintiff’s lumbar spine.
440 Although the plaintiff has complained of increasing pain and there have been findings of restricted lumbar movement on examination, no other consequences have been pointed to which support any accident-related aggravation meets the test of seriousness.
Cervical spine
441 In this application, less reliance was put on the impairment to the cervical spine.
442 The plaintiff has suffered longstanding neck problems of varying degrees.
443 In cross-examination, the plaintiff agreed he injured his neck in the 1985 accident, but denied the pain had continued since then. In 1993, he attended The Royal Melbourne Hospital complaining of neck pain. The plaintiff also experienced neck pain following an electric shock in 1995.
444 The plaintiff deposed to some neck pain following the 1999-2000 accident. In cross-examination, he also agreed he suffered an injury to his neck in the 2002 accident, after which he wore a cervical collar for two months.
445 On attendance at The Royal Melbourne Hospital in November 2004, the plaintiff was complaining of major ongoing problems of neck and trapezius pain.
446 The plaintiff was possibly taking Digesic for his neck at the time of the accident.
447 On examination in September 2008, the plaintiff complained to Mr Khan of an ache in his neck. On recent examination, Mr Khan did not find any significant restriction of neck movement and therefore did not measure the level of cervical movement.
448 In cross-examination, Mr Khan agreed that there was significant foraminal pathology at C5-6 and C6-7 shown on the 2002 MRI, similar to that shown in 2011. He further agreed that pathology in 2002 was, of itself, of sufficient severity to explain why someone might present today with neck pain, although to analyse the plaintiff’s position post the 2009 accident, other factors also needed to be considered.
449 The only treatment after the accident for the plaintiff’s neck appears to be the pain blocks administered by Dr Vagg. Funding was requested for median nerve blocks but this was denied following Dr Kostos’ advice that such treatment was inappropriate where a person had a generalised Chronic Pain Syndrome and that, in those circumstances, blocks were virtually uninterpretable.
450 I was not addressed specifically about the plaintiff’s migraines. Clearly these were a significant problem before the accident and required a number of attendances at Geelong Hospital and The Royal Melbourne following the 1985 accident (1987, June 1988, June 1989). The plaintiff also complained of headaches when he attended The Royal Melbourne Hospital in October 2004.
451 The plaintiff required medication for this condition before the accident, and continues to do so.
452 Whilst the plaintiff says the migraines have increased in frequency and severity, and this is supported by Dr Warner, I am not satisfied that this is an aggravation which meets the necessary narrative test.
453 I am not satisfied any aggravation of the plaintiff’s cervical spine condition in the accident can be described as “serious”.
Right knee
454 Although the plaintiff did not suffer any bruising to his knees in the accident, I accept that he suffered injury to his right knee as he reported to Mr Bowyer in May 2009.
455 The plaintiff first suffered a right knee injury in 1991. He injured his knee in the 1999-2000 and June 2001 transport accidents as Dr Suss reported.
456 The plaintiff deposed he injured his right knee in the 2002 accident, following which he had three injections from an orthopaedic surgeon.
457 On attendance at The Royal Melbourne Hospital in late October 2004, the plaintiff was still complaining of right knee pain.
458 The plaintiff deposed he injured his right knee in the 2007 accident and later had surgery in March 2008 after investigations were carried out.
459 On examination by Mr Mander in September 2007 pre knee surgery, the plaintiff complained of constant ache and grinding in the back of the knee and he had difficulty driving longer distances.
460 Further MRI scanning on 1 July 2008 post surgery was carried out with the clinical notation of “poor response to arthroscopic surgery”.
461 Whilst the plaintiff deposed his knee was improving and he intended to return to work just prior to the accident, when examined by Mr Khan in September, seven months before the accident, the plaintiff still had a range of significant problems with his right knee.
462 The plaintiff then reported to Mr Khan problems with kneeling, bending, squatting, walking and driving long distances. He also described a throbbing ache and constant pain in his right knee.
463 Following the 2007 accident, the plaintiff could not engage in active sport as he confirmed in his third affidavit and in cross-examination, because of his right knee pain.
464 The plaintiff’s claim in relation to this right knee was accepted by IUS Pty Ltd and he was paid total incapacity benefits under his disability until what appears to be early 2009.
465 The plaintiff was taking Digesic for his knee pain at the time of the accident.
466 Whilst Dr Bowyer’s report is unclear in this regard, the plaintiff deposed that he had injections in his knee on 18 February and 25 March 2009, one month before the accident.
467 Since the accident, the plaintiff has complained of increased right knee pain. There has been no specific treatment undertaken for this condition.
468 I am not satisfied there has been any aggravation of the plaintiff’s right knee related to the accident that meets the test of seriousness.
469 The restrictions now complained of are in similar terms to those that were ongoing immediately prior to the accident.
Feet
470 The plaintiff also had longstanding problems with his feet.
471 The plaintiff suffered injury to his right foot carrying a ladder in 2001, although he said the pain at that time differed from his present foot pain. He complained of right foot pain at The Royal Melbourne Hospital in November 2004.
472 The plaintiff was taking Digesic for feet pain before the accident.
473 The plaintiff described on his disability form of February 2009 that foot pain “++” was a condition prolonging his recovery.
474 Following the accident, the plaintiff has had two injections into his feet. No other treatment has been suggested.
475 Whilst Mr Khan thought the plaintiff had flared up a pre-existing plantar fasciitis in both heels and had developed metatarsalgia in both feet in the accident, taking into account the limited evidence available, I am not satisfied there was any aggravation of the plaintiff’s feet condition that is “serious”.
Conclusion
476 Given my views as to the unreliability of the plaintiff’s evidence and the history of pre-accident complaints in all areas now complained of, I am unable to accept there has been an aggravation of any condition which is “serious”.
477 Counsel for the plaintiff was unable to identify any significant factor, save for the plaintiff’s complaint of increased pain, and a submission that the plaintiff was unable to work because of his back condition, to establish that the aggravation of any of the claimed impairments is “serious”.
478 Further, making the task of identifying an accident-related aggravation more difficult is the diffuse nature of the plaintiff’s complaints of pain not only in the areas claimed but also in his hands and forearms. At times the plaintiff has complained of constant pain in all these areas.
479 This situation has led to practitioners such as Dr Kostos and Dr Warner to diagnose a Pain Syndrome or fibromyalgia and others, including Dr Stockman and Mr Dooley, have identified a significant psychological component in the plaintiff’s presentation.
480 Most of the medical practitioners who support the plaintiff’s application have received an inadequate, sketchy history of his pre-accident conditions and complaints.
481 Those practitioners who have tried to do an apportionment on limited information are not confident in their conclusions.
482 Dr Warner is probably in the best position to comment on this issue, having treated the plaintiff both before and after the accident. He noted the plaintiff had previously suffered from a depressed mood, neck, back and elbow and knee pains following other accidents. He considered the latest accident “may” therefore have aggravated previous injuries.
483 Dr Bowyer simply stated it was impossible to say that the accident was the only cause of foot and knee pain, having treated the plaintiff for these conditions before the accident.
484 Whilst Mr Khan saw the plaintiff before and after the accident, his knowledge on recent examination of the plaintiff’s health prior to the accident is incomplete, with the plaintiff having told him he recovered from earlier injuries.
485 Dr Stockman was given a similar history that the plaintiff had largely recovered from earlier injuries, when he concluded the accident was, to a large extent, responsible for his injuries, noting the plaintiff did not require strong analgesia before the accident except for infrequent migraines
486 Dr Sutcliffe noted neck and other serious injuries in 1985, bruising right knee in 2001, motor vehicle accident in 2002 and, in 2007, further injury to right knee which required menisci surgery. She did not undertake any apportionment of the role of the accident in the plaintiff’s current presentation.
487 Dr Sutcliffe’s focus was on the plaintiff’s spinal condition and she concluded he sustained aggravation of degenerative change in the cervical spine and aggravation of lumbar spondylosis, diagnosing a myofascial pain. She did not address the lower limb injuries in any detail.
488 Earlier cervical investigations undertaken in 2002 were not available to Dr Sutcliffe or any other examiner.
489 Mr Dooley did not do an apportionment, simply finding the plaintiff suffered soft tissue injuries to his cervical and lumbar spine, aggravating the underlying degenerative condition. He did not think the knee injury related to the accident and did not comment on the plaintiff’s foot problem.
490 Taking into account all the evidence, I am not satisfied that the plaintiff’s spinal condition, right knee problem or feet problems have been aggravated in the accident to the point where such aggravation meets the definition of “seriousness” in Humphries[85] as required in Petkovski.[86]
[85]Humphries v Poljak (supra)
[86]Petkovski v Galletti (supra)
491 Accordingly, all three applications are dismissed.
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