Patterson v TAC
[2022] VCC 874
•16 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-05810
| Keith Frederick Patterson | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 & 4 November 2021 | |
DATE OF JUDGMENT: | 16 June 2022 | |
CASE MAY BE CITED AS: | Patterson v TAC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 874 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: serious long-term impairment to the spine –neck injury – aggravation – whether serious
Legislation Cited: Transport Accident Act 1986
Cases Cited:Bezzina v Phi & Anor [2012] VSCA 161; De Agostino v Leatch & Anor [2011] VSCA 249; Dressing v Porter [2006] VSCA 215; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading [2016] VSCA 232, Richards v Wylie [2000] VSCA 50; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702.
Judgment: Leave Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison with Mr Y C Chen | Slater & Gordon Lawyers |
| For the Defendant | Mr J. Ruskin QC with Mr S Martin | Lander & Rogers |
HIS HONOUR:
1The plaintiff is 70 years of age. He makes application for the grant of a serious injury certificate so that he may commence proceedings for damages at common law stemming from an injury sustained in a transport accident that occurred on 3 May 2016.
2The plaintiff was represented by Mr Harrison QC with Mr Chen of junior counsel and the defendant was represented by Mr Ruskin QC with Mr Martin of junior counsel.
3The application is made pursuant to s 93(4) of the Transport Accident Act 1986. Initially, the plaintiff relied on paragraph (a) of the definition of serious injury in that the injury to his cervical spine resulted in severe restrictions to his neck with significant pain and suffering consequences as well as paragraph (c) of the definition in that the transport accident caused a severe mental disorder. At the commencement of the hearing, Mr Harrison abandoned reliance on paragraph (c) but to the extent that the plaintiff’s physical pain causes him to suffer a psychological sequelae, Mr Harrison relied upon the well-known and often relied upon dicta in Richards v Wylie.[1]
[1] [2000] VSCA 50.
The documentary evidence
4The plaintiff tendered the following evidence in support of his application:
·Affidavits of the plaintiff dated 16 April 2018, 16 March 2021 and 22 October 2021;[2]
[2] Exhibit P1, Plaintiff Court Book (“PCB”) 5-18.
·Affidavit of Graham Patterson dated 20 November 2020;[3]
[3] Exhibit P2, PCB 19-21.
·Affidavit of Marianna Patterson dated 20 November 2020;[4]
[4] Exhibit P3, PCB 22-24.
·Radiological Reports;[5]
oImaging of cervical spine dated 23 July 2010;[6]
oDiagnostic imaging report – cervical spine dated 27 August 2007;[7]
oX-ray cervical and thoracic spine dated 9 May 2016;[8]
oCT- cervical spine dated 9 June 2016;[9]
oCT Cervical Spine dated 13 October 2017;[10]
oMRI Cervical Spine dated 31 August 2018;[11]
oCT Cervical Nerve Root Injection dated 24 July 2019;[12] and
oMRI Cervical Spine dated 29 January 2020.[13]
[5] Exhibit P4, PCB 25-35.
[6] Exhibit P4, PCB 25.
[7] Exhibit P4, PCB 26.
[8] Exhibit P4, PCB 27-28.
[9] Exhibit P4, PCB 29-30.
[10] Exhibit P4, PCB 31-32.
[11] Exhibit P4, PCB 33.
[12] Exhibit P4, PCB 34.
[13] Exhibit P4, PCB 35.
·Reports of Dr Elroy Schroder dated 17 June 2017[14] and 21 March 2019;[15]
[14] Exhibit P5, PCB 36-59.
[15] Exhibit P5, PCB 60-94.
·Report of Mr Yagnesh Vellore dated 30 January 2020;[16]
·Report of Mr Stephen Doig dated 24 May 2017;[17]
·Report Dr Leslie Roberts dated 5 December 2017;[18]
·Report of Dr Catherine Stark dated 17 April 2019;[19]
·
Reports of Dr Jennifer Flynn dated 17 June 2019,[20] 30 March 2020,[21]
4 February 2021,[22] and Further and complete copy of Report of Dr Jennifer Flynn dated 17 June 2019;[23]
·Reports of Mr Paul D’Urso dated 8 April 2020[24] and 9 December 2020;[25]
[16] Exhibit P6, PCB 95.
[17] Exhibit P7, PCB 125-127.
[18] Exhibit P8, PCB 128-135.
[19] Exhibit P9, PCB 136-139.
[20] Exhibit P10, PCB 140-146.
[21] Exhibit P10, PCB 147-153,
[22] Exhibit P10, PCB 154-157
[23] Exhibit P10, PCB 178-187.
[24] Exhibit P11, PCB 158-161.
[25] Exhibit P11, PCB 162-165.
5The defendant opposed the grant of a serious injury certificate and in doing so, relied on the following evidence:
· Letter from Care Connect by Jacqui Hall, Client Advisor dated 13 April 2021;[26]
· X ray Right Shoulder Cervical Spine dated 23 November 2012;[27]
· Reports of Dr John Owen 12 April 2019[28] and 12 December 2019;[29]
· Report of Dr Andrew Firestone 02 May 2019;[30]
· Reports of Mr Myron Rogers 09 June 2020[31] and 20 January 2021;[32]
· Extract of records of Yarra Valley Clinic, various dates;[33]
· Extract of records of Mark Quittner, various dates;[34]
· ACAS Assessment Outcome Report 30 March 2009 and correspondence from Care Connect to Dr E Schroder dated 4 May 2009; and[35]
· Application for parking permit 20 October 2016.[36]
[26] Exhibit Defendant Court Book (“DCB”) D1, see T37, L25-31.
[27] Exhibit D2, DCB 8.
[28] Exhibit D3, DCB 11-18.
[29] Exhibit D3, DCB 19-25.
[30] Exhibit D4, DCB 26-38.
[31] Exhibit D5, DCB 39-44
[32] Exhibit D5, DCB 45-50.
[33] Exhibit D6, DCB 51-145.
[34] Exhibit D7, DCB 158-165.
[35] Exhibit D8, DCB 166-167.
[36] Exhibit D9, DCB 168-170.
6I have had regard to all medical reports referred to and relied on by the parties in evidence, the cross-examination and re-examination of the plaintiff and the addresses of counsel. In the reasons that follow I have referred to such of the medical evidence that has proved necessary in order for me to arrive at my findings and so as to explain my reasons.
The transport accident
7The plaintiff’s account of the transport accident is that on 3 May 2016 he was stationary in his parked car on St Leonards Road, Healesville. He had come to a complete stop. He had removed his seatbelt. He was ready to get out of his vehicle but before doing so, he was struck by a 4WD vehicle that had apparently made a left-hand turn from Maroondah Highway. This other vehicle struck the plaintiff’s car forcefully from behind, shunting it forward. He says that he was thrown around in his vehicle. He was struck a second time and was pushed forward approximately 20 metres.
8Police and ambulance attended at the scene. The plaintiff was not taken to hospital.
9The defendant did not suggest that the account of the accident was unreliable or untrue or that it its occurrence could not result in a neck injury.
The plaintiff
10The plaintiff was born in 1952. He lives in Healesville. He is an indigenous man, both Yorta Yorta and Taungurong and he said his country is around Echuca. He has family ties to a place called Cummeragunja, near the New South Wales border and Lake Tyers.
11He is a pensioner. He has been in receipt of a disability support pension since 1996 for chronic lower back injury, long-term psychological issues, and alcoholism. He has additionally suffered from a number of other long-term medical conditions including heart and lung conditions. He has been a heavy smoker for 50 odd years. Something over a year ago, he was diagnosed with Type 2 Diabetes. He has not worked for decades. None of this account is controversial.
12Dr Schroeder at the Yarra Valley Clinic in Healesville has been the plaintiff’s general practitioner since the 1970s. Dr Schroeder has treated the plaintiff for ongoing lower back pain and has prescribed analgesic and anti-inflammatory medication. Dr Schroeder also had a hand in treating the plaintiff for long-term depression connected to a variety of dysfunctional family issues as well as alcohol abuse.
13Dr Schroeder was involved in treatment for the plaintiff’s right shoulder and neck pain prior to the transport accident. In 2012, the plaintiff had an x-ray of the right shoulder and neck because of pain he was suffering but that was predominantly located in his right shoulder.
Medical attention following the transport accident
14The plaintiff deposed[37] that although he felt “alright”[38] immediately after the transport accident, the following day he commenced to experience pain in his neck. He described sharp shooting pains extending up into his head and reaching behind his ears. He situated the pain as between his shoulder blades and extending into his neck and head. He said neck pain and a near constant headache have accompanied him ever since the transport accident. He equated the sensation of pain to an electric shock. He says he experiences this type of neck pain multiple times each day and it is debilitating. It is accompanied by a headache that extends across the top of his head. If, for instance, he performs certain sharp movements of his neck, he will suffer a shock that shoots up past his ears, across the front of his face and into his eyes.
[37]Exhibit P1, Affidavit of the Plaintiff dated 16 April 2018, PCB 5-12.
[38]Exhibit P1, PCB 7.
15Two days after the accident, on 5 May 2016, the plaintiff attended the Yarra Valley Clinic but he was unable to see Dr Schroeder.[39] He was prescribed Panadeine Forte and Tramal for his pain but he did not take Tramal because he said he read the label that cautioned against its use and driving.
[39]Exhibit P1, PCB 7-8.
16The plaintiff continued consulting doctors at the Yarra Valley Clinic through to May 2016. During this time, he had an x-ray of his neck and upper back. By the end of May 2016, he had been prescribed Lyrica for pain management.
17In June 2016 Dr Schroeder referred the plaintiff for a CT scan of his brain and cervical spine.[40]
[40]Exhibit P4, PCB 29-30.
18The plaintiff attended for chiropractic treatment once in 2017. He said he found it painful and so did not return. He subsequently attended a physiotherapist on perhaps five occasions through a Medicare plan but he said it provided only transitory relief.
19On 31 August 2018, the plaintiff had an MRI on his cervical spine. It identified C6/C7 severe left neural foraminal canal narrowing with the exiting left C7 nerve root contacting disc. Also C5/C6 moderate left neural foraminal canal narrowing with the exiting left C6 nerve root contacting disc.[41]
[41]Exhibit P4, PCB 33.
20On 24 July 2019, the plaintiff had a cervical nerve root injection which provided him with a few hours of relief from neck pain.[42]
[42]Exhibit P4, PCB 34.
21On 29 January 2020, the plaintiff had a further MRI scan of his neck that showed bone and disc degenerative changes from C3-4 to C6-7 with mild anterior cord encroachment as well as foraminal narrowing.[43]
[43]Exhibit P4, PCB 35.
22On 30 January 2020, the plaintiff saw neurosurgeon Mr Vellore about his ongoing neck pain and symptoms. Surgery in the form of a C5-C6 and C6-C7 anterior cervical discectomy was recommended by Mr Vellore. According to his report, the plaintiff was keen to proceed with the surgery[44] but a request by Mr Vellore was rejected by the insurer.
[44]Exhibit P6, PCB 95.
23The plaintiff deposed that he continues to consult Dr Schroeder for ongoing strong pain in his neck, the electric shock sensations experienced up his neck and into his head, as well as persistent headaches.
24The plaintiff was prescribed Osteomol[45] (665mg) tablets. He said was generally taking a dose of two tablets every four hours, up to a total of six per day but not every day. He said he was scared to take them if he needed to drive so he reserved them for the very worst days when the pain was “particularly severe.”[46] He explained that he was fearful of becoming addicted to painkilling medication because of a past history of alcohol addiction as well as possible adverse effect on his kidneys and liver. He said he had witnessed addiction in others. Despite his account of continuous pain, he no longer takes Osteomol or in fact any pain relief medication.[47]
[45] A paracetamol based pain relief.
[46]Exhibit P1, PCB 9.
[47]Exhibit P1, PCB 14.
25Because of strong and constant neck pain the plaintiff said he has extreme difficulty getting regular and restful sleep. He has tried different pillows and sleeping positions but nothing assists. He is in pain and generally tosses and turns all night. He is regularly woken multiple times of a night by pain. He is frequently exhausted and will need to nap during the day.[48] He has refused any medication to assist with sleep.
[48]Exhibit P1, PCB 10.
Domestic assistance
26The plaintiff deposed that prior to the transport accident he was able to take care of the lawn his lawn but now it is tended to by a service provider called Care Connect. He deposed that prior to the transport accident he and his son would cut fire wood with a chainsaw in the bush but that he can no longer perform that task and he now relies on the purchase and delivery of pre-cut firewood.
27The plaintiff deposed that around the house he receives help from his ex-wife. He said that there is much housework to attend to and many domestic activities that are difficult and painful for him to execute which he attributes to the effects of his neck injury. He mentioned that vacuuming is difficult because of the neck movements involved. He said his ex-wife assists him with pretty well everything.[49]
[49]Exhibit P1, PCB 10.
28The plaintiff said he has been advised to walk each day for exercise. He generally walks between two and three kilometres per day, although he finds it very difficult, which he attributed to both his lung condition that causes shortness of breath and neck pain that he suffers if he needs to walk on uneven ground or turn his neck suddenly.
29The plaintiff has suffered depression for many years before the transport accident. The clinical notes put in evidence record episodes of family stress involving his children and other episodes of disquiet involving, for example, conflict with neighbours. Separately, though, he described every day hearing the "bang" of the 4WD hitting his car. He said he has flashbacks to the accident every day. He described being greatly depressed generally every day. However, he will not take anti-depressant medication because of his fear of addiction.
30The plaintiff said it is very important to him that he be able to get up to his country. His grandparents were married at Cummeragunja Mission in New South Wales, and he tries to go there as often as he can but as he described it, his ability to travel is impeded “somewhat due to his lung condition”[50] but “greatly impaired”[51] because of his neck condition. The drive from Healesville to Cummeragunja is approximately three to three-and-a-half hours and he finds driving such a distance very difficult and painful because of his painful neck.
[50]Exhibit P1, PCB 11.
[51]Exhibit P1, PCB 11.
31The plaintiff said a relative had recently undergone triple bypass surgery and although he would have loved to have driven up to Cummeragunja to be with her, he could not. The plaintiff also has relatives in Lake Tyers Mission in Gippsland. He said he used to visit approximately twice a year but has not done so since the transport accident because the drive is simply too much for him to tolerate.
32In the plaintiff’s further affidavit he described that his walking endurance has reduced since swearing his initial affidavit and he is now limited to walking just a couple of hundred metres at most. He said he will spend a couple of minutes on an exercise bike.
33He said he finds it hard to dress himself, clean up, garden, or hang out the washing because of pain and restriction in his neck, and the debilitating nature of his headaches.
34He said that he struggles to do head checks when driving because of restricted movement in his neck.
35He said that he is no longer able to go and get bush food or to fish as much as he used to. He said he used to go into the bush almost every Sunday.
36He said the that his pain is now so bad that he entertains suicidal thoughts.
The pre-existing neck
37It is evident that the plaintiff had issues with his neck extending back many years prior to the accident. He said that although it had been explained to him that he had a neck scan in 2007 he did not think it prompted further investigation or treatment. There is no records to indicate that it did. He said that he does not remember much about the pre-existing issues he had with his neck despite references to it in his medical records. He in fact attributed any neck pain he had experienced as shoulder related.
38A diagnostic imaging report dated 27 August 2007 of the cervical spine was expressed as follows[52]:
There is loss of cervical lordosis. No prevertebral soft tissue swelling.
Mild uncovertebral and facet joint arthropathy cause mild intervertebral narrowing bilaterally, greatest involving the right at the C4-5 level. No fracture.
Conclusion
Mild osteophytes noted of the cervical spine, without significant neural exit encroachment. An MRI may be of use to assess for disc protrusion.
[52] Exhibit P PCB 26.
Graham Patterson
39The plaintiff’s son deposed[53] that he had lived at home with his father until he was around 17. For the past 20 years, he has seen his father usually a few times a week. He lives close. In the years before the transport accident he and his father would go out to the forest and fill a trailer load with firewood. Sometimes they would do two or more loads in a single day. In winter they would often do a trip into the forest twice per week or more. He said his father loves his firewood and his wood heater. Since the accident, he cannot recall having gone into the forest to get firewood with his father.
[53]Exhibit P2, PCB 19-21.
40He said that he and his father would fish most weekends at Eildon, particularly when the weather was good. Since the accident they have tried to go fishing a few times, but after less than an hour, his father usually will say something such as, "I'm too sore, I've got to go home."[54]
[54]Exhibit P2, PCB 20.
41He said he has been a car passenger when his father drives and has witnessed that whenever he needs to perform a head check in either direction for oncoming traffic, it appears as if he struggles and has to turn his whole body.
Marianne Patterson
42Ms Patterson deposed[55] that she separated from the plaintiff in around the mid-1990s. Approximately two years after their estrangement they resumed contact with one another, and in about 1998, she moved back in with the plaintiff and since then they have lived together but separately.
[55]Exhibit P3, PCB 22-24.
43Ms Patterson deposed that before the transport accident, she and the plaintiff shared the domestic cleaning duties and would clean up after themselves around the house. Since the accident, she has had to take on more cleaning responsibility of the common areas.
44She said she was aware that he loved to go to Echuca and that he did so regularly.
45She said she was aware that the plaintiff had enjoyed going into the forest to collect wood with their son. He would split the wood at home as needed to be used in the heater. She observed him chop wood before the accident without any evident difficulty. She said he would fish in the Eildon Weir, particularly, in summer.
46Ms Patterson did not offer any observations concerning the plaintiff’s sleep in the years before the accident but nowadays she hears him groaning during the night through her door. She has seen his collection of assorted pillows. He will sleep during the afternoon something that he did not do before the accident.
47Ms Patterson deposed that the plaintiff’s routine of living has completely changed since the transport accident. She often observes him grimace, and say something such as "Ow, my neck."[56]
[56]Exhibit P3, PCB 23.
Report of Dr Schroeder
48In a report dated 21 March 2019 Dr Schroeder said he saw the plaintiff for the first time him in relation to the accident on 17 May 2016. He has diagnosed the accident as having caused a whiplash that exacerbated the plaintiff’s already chronic cervical spinal degenerative disease pain.[57]
[57]Exhibit P5, PCB 36-94.
Report of Mr Vellore
49Mr Vellore neurosurgeon in a report dated 30 January 2020[58] wrote that the plaintiff has developed significant neck pain with bilateral radiculopathy-type symptoms subsequent to the transport accident. He believes the plaintiff appeared to have facetogenic neck pain but does not exhibit any symptoms of gait ataxia or sphincteric dysfunction.
[58]Exhibit P6, PCB 95.
50Mr Vellore said that MRI demonstrated multilevel disc osteophytes in the cervical spine, mainly at C5-C6 and C6- C7, causing neural impingement more so on the right side at C6 nerve root and left-sided C7 nerve root and as well the plaintiff has facet arthropathy (i.e. a degenerative state of the spine) at multiple levels.
Dr Catherine Stark
51Dr Stark is a neurologist. She wrote[59] that the plaintiff suffers from occipital neuralgia, a tenderness at the level of the greater occipital nerve and that his description of electric shooting pains over the parietal temporal region are consistent with occipital neuralgia and cervicogenic headache. She considers that the plaintiff’s account of significant neck pain is likely associated with his multi-level facet joint disease and osteophyte formation which she said can contribute to headache and is difficult to distinguish from occipital neuralgia. Nonetheless, Dr Stark observed that the headache and neck pain shared a clear temporal association with the transport accident as they emerged two days afterwards.
[59]Exhibit P9, PCB 136-139.
52Dr Stark wrote that whereas the extensive degenerative changes in the plaintiff’s cervical spine would have been present prior to the accident they appeared to be asymptomatic and had not been causing him pain previous to the transport accident.
53With regards to possible left C7 radiculopathy, Dr Stark wrote that this did not seem to be causing the plaintiff significant pain or disability.
54Dr Stark thought that because the plaintiff’s pain has been stable for a long time that without intervention it was unlikely to change.
Dr Jennifer Flynn
55Dr Flynn is an orthopaedic surgeon. Her report is dated 4 February 2021.[60] She wrote that the plaintiff described occipitocervical headaches and nerve pain episodes extending to his right shoulder and significant neck stiffness along with reports of referred or radicular pain to the right shoulder with attempted neck movement. She stated that the plaintiff reported pain of the TMJ region bilaterally and that he had poor sleep due to neck and right shoulder symptoms, as well as headaches.
[60]Exhibit P10, PCB 154-157.
56Dr Flynn wrote that despite the plaintiff experiencing some pain, he is independent in all his activities of daily living, but he described difficulty undertaking activities requiring neck movement such as showering, dressing, hanging out washing and household activities. He explained that he received assistance with duties around the home from his ex-partner and son. He continues to drive his car. He reported difficulty ascending and descending stairs and walking due to dyspnoea (laboured breathing). He is unable to attend to gardening or household maintenance, and has difficulty bending and lifting due to the cervical spine. He previously enjoyed fishing, watching football, and chopping and carrying wood for his fire, but is now limited in his capacity to undertake these activities.
57Dr Flynn reported that the cervical spine demonstrated normal alignment in the coronal and sagittal planes. There was neck and right shoulder pain with neck extension and attempted lateral flexion. There was severely restricted range of neck movement in all directions. Dr Flynn noted no change to the physical examination with absent triceps reflexes likely due to an inability to relax, no weakness, reduced C6 sensation and mild right forearm atrophy. There was no pain or restriction with right shoulder movement. Guarding and dysmetria was noted with spinal movements.
58Dr Flynn diagnosed the plaintiff as suffering an aggravation of multilevel degenerative spondylosis of the cervical spine with occipitocervical headache.
59Dr Flynn summarised the plaintiff as a 68-year-old male who was hit whilst stationary in a vehicle. He reported an injury of the cervical spine with ongoing pain. His right radicular arm symptoms have resolved, although he reported ongoing significant upper cervical pain and referred or radicular pain toward the right shoulder with neck movement. Examination of the plaintiff’s right shoulder did not indicate shoulder pathology to explain those symptoms. MRI demonstrated multilevel cervical facet arthropathy and foraminal narrowing.
60The plaintiff had declined surgical management, all analgesia and had not seen a pain specialist. Dr Flynn suggested that the plaintiff be reviewed by a pain management specialist, but considered it unlikely he will accept any further management and that his prognosis is poor due to significant pathology and symptoms and a refusal for further management.
Mr D’Urso
61Mr D’Urso, neurosurgeon, saw the plaintiff on 2 April 2020[61] and 7 December 2020. In his report dated 9 December 2020[62] he commented that the plaintiff’s symptoms appeared to have worsened since his initial consultation.
[61]Exhibit P11 PCB 158-161.
[62]Exhibit P11, PCB 162-165.
62The plaintiff complained of occipitocervical pain which prevents him from sleeping. Headaches are experienced in the vertex region and feel better when he presses firmly with his palm onto his head. Neck pain shoots into his right shoulder and is at least an 8/10. There is a burning component across his shoulders and neck. He described a locking sensation of his jaw. He is unable to walk for greater than five minutes.
63The plaintiff told Mr D’Urso that he spends most of his time sitting in his reclining chair and watching television. He does not go shopping. He can occasionally cook. He does not perform any cleaning, clothes washing or undertake gardening.
64The plaintiff told Mr D’Urso about the other conditions from which he suffers namely, chronic obstructive airways disease, type 2 diabetes, hypertension. He had a cholecystectomy[63] performed, and an appendicectomy and inguinal hernia repair. His medications include Daonil, Jardiance, Glicazide, Norvasc, Candisartan, Rosuvastatin and he uses a Pavtide puffer and a nebuliser.
[63] Removal of the gallbladder.
65Mr D’Urso explained that on examination the plaintiff exhibited global weakness in his upper limbs, more marked proximally than distally. He could only abduct his shoulders to 90 degrees. His reflexes were diminished at each level and absent at the ankles. Plantar responses were downgoing. Hoffmann's reflex was negative. Sensation was intact. The plaintiff’s cervical range of movement was markedly restricted to less than 35% in flexion and extension and less than 40% in normal rotation.
66Mr D’Urso reported the plaintiff presented with quite severe degenerative change in his cervical spine, particularly at the C6-7 motion segment and, to a lesser extent, at C2-3, C3-4, C4-5 and C5-6 motion segments where there is evidence of multilevel foraminal nerve root impingement, more so on the right side at the upper levels and on the left at the C6-7 level. He also thought that the plaintiff had developed intractable occipitocervical pain and occipitoneuralgic symptoms.
67Mr D’Urso did not think that the plaintiff presented with an employment capacity into the foreseeable future. More to the point for my present purposes, nor did Mr D’Urso believe that the plaintiff had a capacity for any type of more arduous domestic cleaning, gardening, or recreational sporting activity. He considered that the plaintiff only possessed a limited capacity for domestic duties and social and leisure capacity. He thought that the plaintiff may benefit from an assessment by a rehabilitation pain management physician. He also considered that that the plaintiff will be prone to degenerative progression with time.
68Mr D’Urso thought that the plaintiff had sustained a whiplash type injury that has affected his head and neck and seems to have aggravated his already substantial and multilevel degenerative spondylosis of the cervical spine from which he had pre-existing symptoms with imagining that was consistent with degenerative disc disease in the plaintiff’s cervical spine. As well it appeared that the plaintiff had developed intractable occipitocervical headache. Despite all of this, he thought the plaintiff’s “condition” appeared to have only had a mild to moderate effect on his social, domestic, and recreational spheres.
Dr John Owen
69Dr Owen is a consultant orthopaedic surgeon. He provided a report at the request of the defendant dated 12 April 2019.[64] He noted that two days after the car accident the plaintiff commenced to experience pain in his neck and from which he continues to suffer. The plaintiff’s pain is severe and radiates up the back of his neck, around to his temple, especially on the right side and across the back of his shoulders. The plaintiff told Dr Owen that he thought this pain was growing worse and that it disturbs his sleep. Dr Owen wrote that the plaintiff has no symptoms of radiculopathy. Movement of his neck, however, provokes pain and, although the plaintiff still drives, he limits himself to a driving distance of about 30km.
[64]Exhibit D3, DCB 19-25.
70The plaintiff denied a past history of neck problems to Dr Owen, but he volunteered that Dr Schroeder had told him he did have problems with his neck that predated the transport accident.
71Dr Owen reported the plaintiff’s co-morbidities included type 2 diabetes and that the plaintiff is quite short of breath and had been diagnosed with COAD.
72Dr Owen saw the report of the MRI of the plaintiff’s cervical spine of
31 August 2018 that showed widespread significant degenerative disc disease. As well he had reports of x-rays performed on 9 May 2016 that identified widespread degenerative changes in the neck. CT scan of 9 June 2016 identified widespread degenerative changes in the cervical spine but no fractures.73Dr Owen referred to Dr Schroeder’s clinical note on 6 December 2012 that included that the plaintiff had undergone imaging of his cervical spine along with a comment, “Ongoing neck pain and depression associated with a quarrel.”[65]
[65]Exhibit D6, DCB 73.
74By the time of Dr Owen’s second report dated 12 December 2019[66] the plaintiff had undergone an injection into his neck that at first he said had not helped him but later said that for a short period of hours his neck felt the best it had ever felt only for the pain to return. Dr Owen wrote that despite the plaintiff’s refusal to take any form of analgesia he nevertheless takes medications for his diabetes, hypertension and respiratory problems.
[66]Exhibit D3, DCB 11-18.
75The plaintiff told Dr Owen that he just sits around of a day whereas he previously he had been active and chopped his own wood, fished, and played golf. He was still able to do his shopping and capable of driving.
76Dr Owen diagnosed that the plaintiff with cervical spondylosis and with a lengthy history of cervical spine pathology. He observed that based on the plaintiff’s narrative his functioning had been much better before the accident and he had been able to fish, shop and chop wood.
77Dr Owen wrote that the plaintiff presented with significant comorbidities with his chest problems and diabetes but by the same token he had no doubt that the plaintiff has significant symptoms and dysmetria[67] in his cervical spine.
[67] A lack of co-ordination.
78Dr Owen wrote that the plaintiff vehemently denied previous problems with his neck, whilst accepting he had been told by Dr Schroeder that he did have such problems, but said he “just does not believe it”.[68]
[68]Exhibit D3, DCB 15.
79Dr Owen said that the plaintiff had past spinal problems consistent with radiology and imaging as well as his general practitioner notes and a record of a lumbar spine problem. Dr Owen said it was possible that these symptoms had settled and not been “grossly problematic”[69] at the time of the transport accident.
[69]Exhibit D3, DCB 15.
80Dr Owen reported that radiological evidence supported the plaintiff’s complaints and disability and that the findings are consistent with his current complaints of injury and disability. He has problems with his activities of daily living. He said his only activity is to go fishing for a couple of hours and then come back and watch television.
81Dr Owen accepted that the accident related problems are a component of the plaintiff’s disability, however, he suspected that most of the plaintiff’s incapacity is from his chest rather than his neck. His pre-existing problems, particularly in his chest, interferes with his capacity because he gets short of breath, on undertaking even simple tasks.
Myron Rogers
82In a report dated 20 January 2021[70] Mr Rogers, neurosurgeon, said that examination of the plaintiff’s upper and lower limbs disclosed no demonstration of any focal abnormality. Making allowance for pain, Mr Rogers said there was a “give-way”[71] weakness at the shoulders, there was no weakness at the elbow, wrists or the fingers. There was no evidence of muscle wasting and there were no fasciculations. The upper limb reflexes were all present, but depressed. He had absent ankle jerks and downgoing plantar sensation in the upper and lower limbs to light touch and pinprick was intact. There was severe restriction of movement of the cervical spine. There was significant restriction of movement of both shoulders. There was severe restriction of movement of the cervical spine. There was significant restriction of movement of both shoulders.
[70]Exhibit D5, DCB 45-50.
[71]Exhibit D5, DCB 46.
83Mr Rogers reviewed the result of radiology comprising a “CT Cervical Spine (MIA) of 13 October 2017[72] that identified loss of the cervical lordosis, with evidence of chronic disc degeneration at C4/5, C5/6 and C6/7 along with marked degenerative change in the left C2/3, right 3/4, both C4/5, right C5/6 facet joints. There was severe foraminal narrowing on the left at C6/7 and on the right at C3/4. MRI Cervical Spine (MIA) 31/08/2018: the degenerative changes seen above are noted. There is no spinal cord compression, there is multi-level foraminal narrowing with radiologic compression of several nerve roots. MRI Cervical Spine (MIA) 29/01/2020: the findings are similar to those of 31/08/2018.”[73]
[72]Exhibit P4, PCB 31-32.
[73]Exhibit D5, DCB 47.
84Mr Rogers diagnosed the physical injuries caused by the transport accident as an aggravation of pre-existing symptomatic cervical spondylosis and a chronic pain syndrome. Mr Rogers wrote that the plaintiff’s complaint of right side occipital pain, neck and shoulder girdle pain, are associated with a chronic pain syndrome and is one of the factors contributing to his disability. Mr Rogers said that the plaintiff explained that prior to the accident he could perform domestic and recreational activities but which he now does not attempt. Mr Rogers considered this aspect of the plaintiff’s disability as due to his chronic pain syndrome which he believed will persist indefinitely.
Defendant’s Submissions
85In final address Mr Ruskin submitted that it was open on a consideration of the whole of the evidence not to be satisfied that the consequences to the plaintiff of the motor vehicle accident are serious for him and serious when assessed in light of the narrative test, as the statutory requirement is often compendiously and conveniently referred to.
86Mr Ruskin’s submissions were predicated on the common understanding of the parties that the plaintiff’s injury calls to be assessed as an aggravation of pre-existing degenerative changes to the neck that are manifested by pain and restriction.
87Mr Ruskin submitted that it is necessary in such a case to look generally at the background of the plaintiff and the conditions unrelated to the accident with which he was afflicted and their effect on him before the accident and then as they are at the present time, in order to be able to assess the difference to such functioning that has been caused by the transport accident.
88Mr Ruskin commenced his address by reference to the fact that well before the transport accident the plaintiff was an invalid pensioner who was suffering from several significant medical conditions each of which still affect him. These included diabetes and COAD. He had, and still has, a major significant continuing depressive condition that is unrelated to the accident. He had already suffered from a right shoulder injury and he had experienced impaired function and pain to his neck. He had been experiencing significant insomnia. He had suffered significant cramping at night that affected him. He already had required and had obtained the services of Care Connect to undertake various chores for him. Conformably with Mr Ruskin’s reliance on evidence that identified the manner and extent that these earlier health conditions had on the plaintiff’s functioning, he referred to Peak Engineering & Anor v McKenzie[74] (‘Peak Engineering’) where it was said by Maxwell P at [24]:
In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.
[74] [2014] VSCA 67.
89Concerning the evidentiary controversy that arose in the hearing about the date that the provision of assistance from Care Connect commenced, Mr Ruskin submitted that that the preponderance of evidence is that it commenced in 2009, but that even if it was not until 2013 as the plaintiff would have it, the fact remained that the plaintiff’s impaired health and functionality necessitated the provision to him of care and assistance well before the transport accident and not in consequence of it.
90Mr Ruskin also pointed to the poor state of the plaintiff’s memory, with the result, he submitted, that little reliability could be placed in the plaintiff’s evidence. There were instances of the plaintiff’s memory being unreliable referred to by Mr Ruskin. He pointed to the plaintiff’s memory having been proved wrong when, for example, in cross-examination he was adamant that he had not suffered from neck pain prior to the transport accident when the fact is that he had, and he was equally emphatic, and similarly wrong, when he denied having given any account of neck problems before the transport accident to doctors he subsequently came to see despite references to that fact that he had.[75]
[75]See Exhibit P11, PCB 161 and 165, Exhibit P7, PCB 126, Exhibit P8, PCB 129, Exhibit P9, PCB 136, Exhibit P10, PCB 142 and reports of Dr Serry PCB 89, 109 and 118.
91Mr Ruskin referred to the plaintiff’s COAD and his evidence that he had significant lung trouble and difficulty breathing. Mr Ruskin said that irrespective of the plaintiff’s knowledge of the medical condition from which he suffered, the fact is that he has laboured from the condition for years before the transport accident and it is a cause of his significant breathing troubles.
92Mr Ruskin addressed the plaintiff’s evidence, together with that of his son, and to a lesser extent his former wife, of certain activities that he had enjoyed and participated in prior to his transport accident. The accounts included wood chopping, fishing, his wood stack, and visiting his family in the country and, notably, the importance to him of his connection to place. The implication is that the frequency and gusto with which these activities were able to be pursued before the transport accident were markedly greater than they have been since and are due to the aggravation to the plaintiff’s spine and the resulting pain and restricted functioning of the plaintiff’s neck. Mr Ruskin submitted their accounts omitted an account of the effects of all of the many other conditions the plaintiff suffered and the absence of them having been cross-examined did not equate to a corroboration of the plaintiff’s evidence.
93Mr Ruskin addressed the plaintiff’s claim that his walking capacity has been the subject of a downturn because of the transport accident by comparison to what it was beforehand. The plaintiff deposed that “I also find the walking very difficult as a result of neck pain.”[76] Mr Ruskin relied on evidence that the plaintiff had experienced very significant difficulties walking because of COAD.
[76] Exhibit P1, PCB 11.
94In addressing the plaintiff’s more restricted ability since the transport accident to drive distances of any extended duration as opposed to beforehand, Mr Ruskin pointed out that the plaintiff is not limited or restricted because of neck pain from the use of his car to undertake everyday activities such as driving to the shops. Mr Ruskin also addressed the refences contained in the evidence to the plaintiff’s reluctance to drive based on an emotional response to the accident. For example, Dr Roberts in his report 5 December 2017 said that “His emotional issues tend to restrict him from driving too far because of his fear of having an accident.”[77] Mr Ruskin noted that when he asked the plaintiff if he accepted the truth of Dr Roberts’ comment, he said, “Yes, that would be right.”[78]
[77] Exhibit P8, PCB 133.
[78] T55, L11-12.
95In similar vein to Mr Ruskin’s submission that the plaintiff’s walking is very much more affected by his COAD and diabetes than it is from any of the effects of the transport accident, so too, he contended that the cause of the plaintiff’s inability to chop wood is attributable to his long standing lung trouble and not the transport accident. Mr Ruskin referred to the plaintiff’s evidence that when going about gathering firewood with his son, he experienced shortness of breath and such was its effect on him that he was unable to put the firewood in the trailer and had nearly collapsed and, on more than one occasion, his low blood sugar affected him to the extent that he didn’t trust his health and feared he would keel over.[79]
[79]T59, L11-19.
96Mr Ruskin addressed the plaintiff’s account of sleeping difficulties. He submitted that the evidence is insufficient to disclose his sleep having been aggravated by the transport accident. Mr Ruskin identified a half a dozen examples of sleeplessness over a period of approximately six to nine months up to the time of the accident and of the plaintiff having suffered nocturnal cramps.[80] Mr Ruskin observed that despite the plaintiff’s account of an improvement in his night cramping when he said that “I think it was a little bit of exercise that done the job, but yeah, I don't get them now.”[81] Dr Chee, Endocrinology Registrar at the Integrated Diabetes Education Assessment Service in a letter to Dr Schroeder dated 3 February 2021[82] following a telephone consultation with the plaintiff recorded that the plaintiff was experiencing difficulties with nocturnal feet/leg cramping.
[80]Exhibit D6, DCB 72, 73, 75, 78, 79.
[81]T46, L23-25.
[82] Exhibit D6, DCB 119.
97Mr Ruskin addressed the extent to which the evidence identified a change in the assistance provided to the plaintiff by his ex-wife after the transport accident in comparison to the assistance furnished by her to him prior to it. Mr Ruskin submitted that the issue spoke for itself, and that the help from her to him since the transport accident is not as dramatic as the plaintiff would have it. In support of his submission, he referred to the following exchange given by the plaintiff in the course of his re-examination:
And then you gave up the grog? ---Yeah, gave up the grog in ‘98. And your ex-wife has been with you ever since? No, not all the time, no. Not all the time? 'Pissed off again and then she - then she was living with her mother. How long has she been with you this time? --- I don't know, been a while. Then I had a breakdown again and then she come and pull me out of it. If you can think back before the motor car accident, before you get hit by the car? ---Yeah. Is there any change in what she does around the house before the motor accident compared to now? ---Does Marianna do? Yeah? --- She just does the same thing, no different.[83]
[83] T58, L23 – T59, L4.
98Mr Ruskin noted that Ms Patterson deposed that since the accident she has had to take on more cleaning responsibility and the plaintiff can no longer do his fair share in the same way as he used to and as such she is “now practically wholly responsible for the domestic duties.”[84] Mr Ruskin submitted that Ms Patterson’s evidence was not comparable to the plaintiff’s when measured against his account of the assistance having remained essentially the same.
[84]Exhibit P3, PCB 23.
99Mr Ruskin accepted that the plaintiff’s son’s evidence is that his father no longer goes wood chopping but he observed that the plaintiff’s son made no reference to his father’s lung condition the effects of which were exemplified on the occasion of the plaintiff’s evidence when he said he thought he would keel over because of the effect on him of his breathlessness.
100Mr Ruskin addressed the limited extent of the plaintiff’s treatment for his pain since the transport accident. He observed that the plaintiff said that he would not take Temazepam that Dr Schroeder has prescribed in order to assist with his sleep because of its apparent cautionary note concerning usage and driving. Mr Ruskin observed that the idea that the plaintiff could not take the suggested dosage before bed because of a concern about the need to drive makes no sense at all. For the pain suffered on a daily basis to his neck and the accompanying headaches the plaintiff takes no medicine for its relief, however, he said he gets his scripts filled but apparently throws them out ostensibly to placate Dr Schroeder with whom he has a long standing and almost familial relationship. In contrast, and for his non transport related health conditions, he is prescribed and does take medications.
101Mr Ruskin submitted that the plaintiff’s doctors lacked an accurate history of the past complaints and of the radiology whereas Dr Owen and Dr Rogers did have a complete history.
102Mr Ruskin argued that in terms of an aggravation of a pre-existing condition, whilst the medical evidence is to the effect that the plaintiff suffered an aggravation, those upon whose opinions the defendant relies, do not assess it in terms of being “serious”, or “very significant”. In substance, therefore, the defendant submitted that the narrative test is not satisfied.
Plaintiff’s Submissions
103Mr Harrison submitted that the plaintiff’s neck pain was not “substantially symptomatic”[85] in the lead-up to the accident whereas the plaintiff’s account is that it has been constant following the accident and, thereby, providing a temporal connection to it.
[85]Plaintiff’s written submissions, [8].
104Mr Harrison contested the defendant’s submission that the plaintiff’s doctors opinions are based on an incomplete history and that Dr Schroeder and Dr Starks’ reporting exhibited knowledge of the plaintiff’s history.
105Mr Harrison addressed the plaintiff’s alleged unreliability due to his poor memory. He particularly focussed his attention to the evidentiary dispute about the commencement date of the services provided by Care Connect. Perhaps in large part because the evidence very substantially favours the earlier commencement, Mr Harrison placed greater store in addressing the comparison between the services the plaintiff had required from the organisation before the transport accident and since.
106Mr Harrison submitted that although the evidence is that Care Connect both before and after the transport injury mowed the plaintiff’s lawns; before and after the transport accident cleaned his gutters; before the accident and after it, trimmed his hedges, however, in the wake of the transport accident, it organised the plaintiff’s firewood because after the accident he was no longer able to chop it himself. Mr Harrison submitted that this loss in capacity to gather and chop firewood in the bush has been a profound loss for the plaintiff.
107Mr Harrison submitted that whilst Mr Ruskin was correct to identify that the plaintiff has difficulties with his breathing, which is restricting him, it should however be remembered that the plaintiff cannot now use a chainsaw, whereas, prior to the transport accident he apparently could despite his lung condition.
108Mr Harrison contended that Mr Ruskin’s submission that the cause of the plaintiff’s restricted capacity to drive long distances is psychological had a superficial attractiveness but that to adopt it would be contrary to the evidence. The evidence that Dr Roberts, for example, had recorded about driving was – “His pain persists and he finds travel difficult but this varies. His emotional issues also tend to restrict him from driving too far because of his fear of having an accident”'.[86] Dr Stark also reported that the plaintiff had said that any prolonged travel causes an increase in neck pain and this had included his driving to attend her rooms for examination.[87] Mr Harrison submitted that I should assess the restricted driving as very significantly attributable to the plaintiff’s neck pain.
[86]Exhibit P8, PCB 133.
[87] Exhibit P9, PCB 137.
109Mr Harrison submitted that while the plaintiff has suffered from depression for a very long time, there is no evidentiary basis to conclude that his emotional issues have significantly increased since the motor vehicle accident. Thus, prior to the transport accident and beset with emotional issues, he was still capable of driving himself to Cummeragunja and also to Lake Tyres but since the accident he has proved unable to undertake such journeys by car.
110Mr Harrison further submitted that it would be prudent to exercise caution when assessing the effect of the plaintiff’s evidence relied on by Mr Ruskin and adduced in re-examination that the plaintiff’s former wife has essentially performed the same role for him after the transport accident as she was performing beforehand.
111In cross-examination when it was suggested to the plaintiff that Mr Serry, psychiatrist, had reported that the plaintiff lived under the same roof with his ex-wife and appeared to share some of the domestic duties, he said, “Well, I can’t – I can’t use a vacuum cleaner, I can’t do nothing”[88]. As well, Mr Harrison submitted that Dr Roberts recorded the plaintiff as unable to clean, sweep or vacuum “because of his neck pain and shortness of breath”.[89]
[88] T53, L18-24.
[89]Exhibit P8, PCB 133.
112Mr Harrison submitted that the plaintiff was not challenged that he was exaggerating or otherwise was inaccurate in his affidavit evidence about the existence and severity of his neck pain, headaches, and occipital pain.[90] Mr Harrison contended that in the absence of an attack on the plaintiff’s credit, then his evidence and that of his son and former wife about the consequences he says he has experienced since the accident should be taken at face value, save to the extent if modified by clinical evidence.[91]
[90] Plaintiff’s written submissions, [11].
[91] Plaintiff’s written submissions, [13].
113Mr Harrison submitted that furthermore it was inaccurate to describe the plaintiff’s evidence as a wholesale denial of the existence of neck pain prior to the transport accident but he submitted that it was explicable and correct for the plaintiff to think that it was his shoulder that was the problem.
114Mr Harrison addressed the plaintiff’s clinical notes of attendances.[92] He submitted that they consist of a more reliable source of information in assessing the state of the plaintiff’s neck prior to the accident than the plaintiff’s memory, although he also recognised that “they’re not absolutely bulletproof”.[93]
[92]Exhibit D6.
[93] T98, L2.
115Mr Harrison referred to a surgery consultation with Dr Schroeder as far back as on 28 January 2011 in which it was recorded that neurologically there was no headache or neck stiffness.[94] Mr Harrison, however, accepted that some notes appear to contain contradictory findings between what was recorded by clinical assistants at the practice a subsequent examination by Dr Schroeder. For example, a surgery consultation recorded by Sister Ann Mower on 7 February 2012,[95] records, “Neurological, “no headache, no neck stiffness”. [96] Under “musculoskeletal”, she recorded, “Neck pain, no back pain, right shoulder pain”.[97] However, on that same date when the plaintiff was seen by Dr Schroder, under “musculoskeletal” he recorded “No neck pain, back pain, no shoulder pain”.[98]
[94]Exhibit D6, DCB 64.
[95]Exhibit D6, DCB 66-67.
[96]Exhibit D6, DCB 67.
[97]Exhibit D6, DCB 67.
[98]Exhibit D6, DCB 68.
116On 6 January 2015 Sister Elaine Hudson recorded “Recent overseas travel”,[99] which the plaintiff scoffed at when questioned about it by Mr Harrison in the course of re-examination. Sister Hudson also on 6 January 2015 recorded “musculoskeletal”, “Neck pain, back pain”[100] whereas Dr Schroder, who saw the plaintiff on that same date, recorded “Neck pain, no back pain”.[101]
[99]Exhibit D6, DCB 84.
[100]Exhibit D6, PCB 85.
[101]Exhibit D6, DCB 86.
117Mr Harrison questioned the accuracy of the entry of consultation dated 1 October 2009 where Dr Schroeder recorded the plaintiff with “depression anxiety re son’s recent charges of D Drinking and Crashes, other family ms are also contributing to deprrsn.”[102] The plaintiff said he had no recollection of that at all, and his son had no licence and if he'd been arrested by the police he would have known about it.
[102] Exhibit D6, DCB 58.
118The last clinical note of attendance prior to the transport accident that specifically referred to the plaintiff’s neck was on 6 January 2015. Thereafter, the notes included, for example, on 3 March 2015 Dr Shahbaz who recorded a history of “no SOB [shortness of breath], no neck pain, no neurological deficit”.[103] In March and April 2015, the plaintiff had several consultations in relation to sternal pain. On 11 April 2015 there was a notation of “resolving sternal pain”.[104]
[103]Exhibit D6, DCB 88.
[104]Exhibit D6, DCB 89.
119The plaintiff consulted his doctor for various conditions during the remainder of 2015, including for sleeping difficulties (for which the plaintiff was prescribed Temaze on several occasions that he said he refused to take) and depression.
120An examination on 21 January 2016 contained a reference to “no chest pain or SOB”.[105] On 16 February 2016, the plaintiff consulted Dr Schroeder[106] and a notation included “no headache. No neck stiffness... No neck pain. Back pain. No shoulder pain.”[107]
[105]Exhibit D6, DCB 91.
[106]Exhibit D6, DCB 91-92.
[107]Exhibit D6, DCB 92.
121On 5 May 2016 it was recorded that the plaintiff had “MCA on Tuesday. Car was stationery (sic), hit from behind...Pain this morning between shoulder blade. Was fine yesterday...no neurological deficit.”[108] A consultation on 7 May 2016, included a reference to “ongoing neck and thoracic pain.” [109] On 9 May 2016, the GP notes record, “Neck and back pain from the last few days. Had MCA few days ago. Car hit from behind.” [110] A surgery consultation with Sister Hudson on 1 March 2017 remarked that neurologically there was no headache or neck stiffness but musculo-skeletally there was neck pain.
[108]Exhibit D6, DCB 94.
[109]Exhibit D6, DCB 94-95.
[110]Exhibit D6, DCB 95.
122Mr Harrison submitted that a reasonable assessment of the clinical notes overall is that whilst the plaintiff did present with some episodes of neck pain prior to the accident, they do not disclose any attendance for neck pain in the period of approximately 16 months leading up to the accident.
123Mr Harrison relied on Dressing v Porter[111] in which Ashley J.A said, with the concurrence of Callaway J.A and Buchanan J.A, that:
What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences.[112]
[111][2006] VSCA 215.
[112] Ibid [47].
124Mr Harrison also referred to the decision of the Court of Appeal in Poholke v Goldacres Trading,[113] (‘Goldacres’) a case where the plaintiff’s health had already been compromised prior to the contested claim. The Court said this at [111]:
[113] [2016] VSCA 232.
Secondly, although the earlier injury to the applicant’s neck had significantly restricted the range and type of activities, which the applicant was able to participate in, nevertheless, on the evidence, the applicant suffered further disability and limitations on his activities arising from his [subject] back injury.
In particular, the evidence established that he had needed to reduce further the level of work that he had carried out in his shed, and his attendance at drag races. His social life had been seriously affected by his lower back injury. As a result of his lower back pain, he had to take breaks while driving a motor vehicle. His capacity to play with his young son had also been significantly further diminished.
While it is correct that the applicant’s lifestyle had already been severely affected by his [pre-existing] neck injury, what remained was important to him. In that context, the further limitations, resulting from his back injury, were not insubstantial.
125Mr Harrison argued that the passage recited above from Goldacres, was applicable to the plaintiff’s circumstances because before the transport accident the plaintiff was doing his best to manage his various conditions and, as they might reasonably thought to have affected his activities of daily living and recreational pursuits, it was the effects of the transport accident that created a situation where the plaintiff’s few remaining joys, such as fishing and gathering firewood with his son were extinguished. Furthermore, prior to the transport accident the plaintiff was not subject to daily unremitting neck pain and had been able to maintain his connection to county by driving the distances associated with travel to Cummeragunja and Lake Tyers. These too had been significantly impeded.
Analysis and Findings
126I am satisfied and find that the plaintiff was involved in a transport accident on 3 May 2016 and that he suffered injury in that accident. I am satisfied that the preponderance of medical evidence is that he suffered an organic injury to his neck which has aggravated underlying degenerative changes, that has resulted in neck pain and headaches.
127I am satisfied and find that the plaintiff suffered from a degenerative cervical spine prior to the transport accident but according to the evidence of clinical notes and reporting he was only episodically symptomatic and that for well more than a year before the transport accident it was not the subject of complaint.
128Because of the state of the plaintiff’s health before the transport accident and the evidence of the various conditions he suffered and their impact on him it is necessary to determine the extent they can be separated out from the effects the transport accident.
129In Bezzina v Phi & Anor[114] the plaintiff had been in receipt of a disability pension for a long-standing back injury when he suffered injuries to his neck and right shoulder in a transport accident. At first instance, the trial judge found that the plaintiff’s neck and right shoulder injuries caused by the transport accident did not each meet the serious injury test. The Court of Appeal agreed. Significantly, the Court of Appeal stated at [23]:
In assessing whether each claimed serious injury satisfied the ‘very considerable’ test, her Honour was required to examine the impact of the injury on the applicant as a whole. Far from her Honour’s approach being erroneous, her Honour was bound, when examining the consequences of the claimed serious injury, to look at how they affected the applicant as he was and would likely have been absent the injuries he sustained in the transport accident. This included looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries.
[114] [2012] VSCA 161.
130The correctness of the approach in Bezzina was reinforced in Peak Engineering.[115]
[115] [2014] VSCA 67.
131What I am required to decide in an application such as this, is the extent to which the transport accident aggravated, if at all, the plaintiff’s already degenerative cervical spine and, in particular, his neck along with the development of the severe head pain and the extent that the other conditions the plaintiff suffered are capable of being separated as the cause of the plaintiff’s restriction and pain and suffering on which he relies.
132I am satisfied by the evidence on the balance of probabilities and find that the plaintiff’s various other health conditions were affecting his activities of daily living before the transport accident and neck injury.
133The documentary evidence better supports a finding that the provision of care services to the plaintiff commenced in 2009 rather than in 2013. An Aged Care Assessment Service Outcome report with a date of assessment of 12 March 2009 included that approval had been given for a Community Aged Care Package with the assessment’s conclusion expressed as follows:
“57 year old Aboriginal gentleman is living in a rented home with his wife, they are formally separated, however she returned to care for him when their daughter left. Mr Patterson has a long history of poor health that is worsening over time…He is committed to remain at home but will be needing increased support to manage in the long term, he would benefit considerably from a community care package through Care Connect”.[116]
[116] Exhibit D8, DCB 166.
134A letter dated 4 May 2009[117] from Care Connect to Dr Schroeder requested the provision of information so as to update their records in light of the fact that the plaintiff “has recently accepted a Commonwealth Funded Community Care Package with Care Connect.”[118]
[117] Exhibit D8, DCB 167.
[118]Exhibit D8, DCB 167.
135Mr Firestone, a consultant Psychiatrist who undertook an independent psychiatric examination for the TAC in May 2019, wrote that since the accident the plaintiff’s wife and son help him more but that his wife “always did the housework, while he took care outside.”[119]
[119] Exhibit D4, DCB 35.
136Even in the event I am wrong about the provision of services having commenced as far back as 2009, then at least by 2013, that is, three years prior to the accident, it was necessary for the provision of assistance to enable the plaintiff to undertake tasks about the house which he was unable to perform primarily because of his COAD. I do not accept, for example, that these services were so connected with his former alcoholism and depression and a nervous breakdown that their continuing need is due to his aggravation injury and, therefore, can be easily separated out. I am not satisfied that an aggravation to the plaintiff’s neck occasioned by the transport accident has caused more than a modest additional difference to the already disabling effects of COAD and to the need for Care Connect to provide the assistance they do. I am not satisfied by the evidence that the activities that the plaintiff’s former wife undertakes around the house is of such an identifiable difference from before the transport accident as to enable me to be satisfied that any change has been more than modest even if it is attributable to the aggravating effects of the transport accident and the development of occipital pain.
137I am satisfied and find that the plaintiff’s limitation in driving long distances as he hitherto appeared capable, is the result of the increased and consistent pain to his neck that is attributable to the aggravating effects of the transport accident. I accept that driving for a lengthy period of time that is to say, perhaps no greater than three quarters of an hour requires the plaintiff to stop on the course of his journey because of neck pain. I accept that previous to the transport accident, the plaintiff was able to drive these longer distances despite the occasional neck pain but since the transport accident he has been prevented from undertaking such journeys because of the significantly increased and frequency of neck and occipital pain. In the final analysis, I have not placed much stock in a separate emotional or psychological adverse response manifested as a fear of driving in order to explain the lack of driving by the plaintiff and relied on by Mr Ruskin. I note this exchange between Mr Harrison and the plaintiff in re-examination:
“All right. You said you were frightened of having an accident?-- Oh, yeah.
And that's in terms of not wanting to drive much?'-- 'What I mean by having an accident is because I don't want to take tablets that will cause an accident. You know, (indistinct words) do that, I don't want to hurt nobody.
This is a different issue. We know why you don't take tablets, because of the link with the driving?---'Yeah.’
But you were asked questions about the fact that you - and you told His Honour that you haven't been to see your people for six years, you haven't been down to Lake Tyres and you haven't been up to Cummeragunja?--- Cummeragunja.
Cummeragunja, I'm sorry?”---I haven't been up there for ages.
Okay. You said you didn't want to drive long distances. One of the reasons was you were frightened of having an accident?---No, no, I have accident - I think it is the pain - it's the - I've had to stop a few times, you know.
Yep?---Get out and walk.
Yes?---Have a break. But I've got to go up there, mate, I've got to go and see me people, I have got to go and see my family.”[120]
[120] T59, L25 – T60, L14.
138In my judgment, the above exchange reinforces my conclusion that the principal and the significant reason that has limited the plaintiff’s capacity to drive to the country and thereby connect with his people and place, has been the increased neck pain. I also accept that the plaintiff’s reduced capacity and independence in being able to drive himself to places in the country to which he has connection because of his ancestry is a loss of particular significance to him personally and one that I am satisfied is equally applicable when judged objectively according to range.
139I accept that the evidence that the plaintiff’s fishing is not as frequent a pursuit as it was before the transport accident, although I have noted that in May 2019, Mr Firestone reported that “recently he has resumed fishing”.[121] I accept this was a pursuit among the very few the plaintiff enjoyed and was able to pursue before the transport accident despite being beset by the other health conditions.
[121] Exhibit D4, DCB 35.
140I am not satisfied that the plaintiff’s walking has been affected by the aggravating effects to his spine caused by the transport accident. It struck me both listening to the plaintiff as well as having regard to the medical evidence, that the account he gave of experiencing an onset of neck pain when walking on uneven surfaces or when turning his head, perhaps in response to a noise encountered when outside, needs to be tempered against what I am satisfied is the very much more significant laboured effects on the plaintiff’s walking due to COAD. One example of the very worrying effects on the plaintiff of his lung condition on his walking was exemplified in the following exchange with Mr Ruskin:
“Right?--- I wouldn't have been walking far, I don't reckon.
It says here you can do four kilometres a day walking but you had to stop? --- I did. I was doing that, that's true.
And then you had to stop. Why did you have to stop?--- I couldn't breathe.
I see?--- You know, I couldn't get the air in me lungs, yeah, because of my lungs.”[122]
[122]T47, L21-28.
141Elsewhere in relation to his walking, the plaintiff said, “Yeah, if you don't mind, how I walk, like, I said before I walk a hundred yards or so and I’ll lean up against something and get me air back again, I'll do that three or four times”.[123]
[123]T51, L13-16.
142The plaintiff holds a disability parking permit.[124] The provision of it to him was predicated on: “cardiac disability - chronic”, “heart disease”, and “capable of walking -but poorly.”[125]
[124] Exhibit D9, DCB 168-170.
[125] Exhibit D9, DCB 170.
143I am satisfied that the significant reason that plaintiff is no longer able to go into the woods with his son to chop firewood with the use of a chainsaw is a result of the aggravating effects caused by the transport accident. I am satisfied that the worsening of the neck and the development of occipital pain is due to the transport accident. I have considered the evidence of the plaintiff having encountered breathing problems associated with his lung condition and the effects of low blood sugar associated with his diabetes but I also regard it as relevant and important that these interreferences to his ability to undertake that task appears to have been previously intermittent, whereas, since the transport accident, the capacity has been extinguished. In re-examination the plaintiff was asked about the difficulty in using a chainsaw because of pain at the back of the head in the following exchanges:
“Does that affect you in terms of the firewood? ---Yes.
How? ---I can't (indistinct) - I can't use a chainsaw.
Why not? ---You have got a chainsaw vibrating like hell, you know, vibrating, and it does affect it.”'[126]
[126]T60, L29 – T61, L2.
144I have also approached the plaintiff’s evidence conscious that in Haden Engineering Pty Ltd v McKinnon[127], (‘Haden’) and subsequently applied in Sutton v Laminex Group Pty Ltd[128], in determining the pain and suffering consequences of an injury, it is necessary to consider not only “what the plaintiff says about the pain (both in court and to doctors)”, but also “what the plaintiff does about the pain (for example, medication, rest, seeking medical treatment)”, as well as “what the doctors say about the extent and intensity of the plaintiff’s pain” and “what the objective evidence shows about the disabling effects of the pain.”[129]
[127] [2010] VSCA 69.
[128] [2011] VSCA 52.
[129]Ibid [46] citing Haden [2010] VSCA 69, [9]-[11].
145What the plaintiff has done about his pain includes attendances on Dr Schroeder but also a refusal to take pain relieving prescription medicine. I have endeavoured to evaluate the reasonableness of the plaintiff’s expressed reluctance to take pain relief which he explained was based on a combination of his concern of addiction and a fear that some medication would adversely affect his safety when driving according to warnings he read on packaging. I am not satisfied that fact that the plaintiff does take some medications for his other health conditions means, therefore, that his pain is not as intense or is experienced as regularly as he says. Of course, I do not know what the contraindications for these other medications he takes are, or why he is willing to take them without the similar attendant fears of addiction or concern about damage to other organs or interference with driving that he testified about in relation to pain relief medication. I have also taken into account Mr Harrison’s submission that Mr Vellore recommended surgery and this was something that the plaintiff agreed to but was not approved by the TAC. In this sense then, legally, logically, and fairly, a failure to pursue treatment possibilities that have been raised and are outside of prescribed pain relief medication should not disadvantage the plaintiff.
146Reverting momentarily to the plaintiff’s complaint of neck and occipital pain, whilst the veracity of his account of pain was not challenged by Mr Ruskin, his reliability was. Mr Ruskin did not deploy his cross-examination of the plaintiff by way of a blunt instrument, testing each and every particular of the plaintiff’s activities of daily life. Such an approach would hardly have been warranted in a case such as this in view of the evident impositions to the plaintiff’s health caused by the state of his non-transport caused conditions to his lungs, his heart, and his diabetes. The effect of these conditions on the plaintiff in going about his life were obvious when regard is had to the whole of the evidence. Accordingly, I have not assessed Mr Harrison’s submission that Mr Ruskin’s failure to challenge the plaintiff’s veracity or credit as one of any moment.
147I have considered that in Haden referred to earlier, the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. For example, the weight to be attached to the plaintiff’s account of the pain he experiences will depend upon an assessment of his credibility. I am satisfied the plaintiff endeavoured to give his best account of his circumstances and I assess him as an honest man. To the extent of issues of chronology and faulty recollections of events or his understanding of the particular aetiology of some of his other conditions were highlighted in cross-examination, I have been able to sufficiently address them and make sense of the plaintiff’s history.
148In Haden, in particular, Maxwell P. observed that the consequences of pain and suffering encompass both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life. Part of the process for the Court to undertake is to assess the intensity of pain which the plaintiff experiences, together with the frequency of pain and its episodes. In this respect, the plaintiff describes intense pain in his neck and extending to the head on a daily basis. The pain is aggravated by certain ordinary and everyday activities such as when needing to execute head turns when driving and that also still afflicts his endeavours at sleep. This is an overall account that is significantly greater than the evidence suggested existed before the transport accident. I am not persuaded that the peculiarity in the plaintiff declining medication that might be thought to aid sleep to the extent predicated as it was on his concern about the residual effects when needing to drive ultimately weighs against a conclusion of reasonableness by him in doing so, especially in light of his expressed history of addiction and fear of a relapse.
149As to my assessment of the plaintiff’s pain and suffering consequences, I have been mindful that the Court of Appeal stated in Stijepic v One Force Group Australia Pty Ltd[130] that the exercise in assessing the statutory emphasis in cases for such leave as is here sought:
“is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this include cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other.”[131]
[130] [2009] VSCA 181.
[131]Ibid [42].
150On a consideration of all of the evidence, I accept and find that the plaintiff’s lifestyle had already been affected by his various co-morbidities for many years before the transport accident. He required the assistance of an external agency and of his former spouse to help him with domestic chores. He freely acknowledged that he had been afflicted by alcoholism and depression and although he has commendably overcome his alcoholism and addiction issues, his depression continues to cast a pall over him but it is not a condition that is a cause of the restrictions and pain that I am satisfied exist because of the organic injury caused by the transport accident.
151I accept and find that what remained for the plaintiff by way of activities that informed his lifestyle and gave him enjoyment after an assessment is made of the effects of the other conditions had on him, was important to him, especially the connection to country and his capacity to travel distances to connect with place and people that his driving conferred on him.
152I accept and find on the balance of probabilities that the plaintiff suffered aggravation by way of further limitations to his neck injury from the transport accident and that the medicine on balance favours a conclusion that the development of occipital pain that extends from the neck to the head has accompanied the injury suffered in the transport accident. There is no reason in the evidence to consider the impairment as other than permanent. I prefer therefore, the plaintiff’s medical evidence as opposed to the defendant’s opinions that the restrictions the plaintiff continues to suffer should be more likely attributed to either his lung condition or a pain syndrome.
153I accept and find that the injury has wrought consequences for the plaintiff that are substantial in the sense that they are very considerable for him and are more than significant or marked. I find this is an equally apposite characterisation of the consequences of the transport accident when they are assessed in comparison with the range of other like impairments.
154The application is granted.
155I direct that the parties file a proposed minute of order to give effect to these reasons within 7 days, failing which I will list the matter for mention.
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