Perera v Transport Accident Commission
[2014] VCC 685
•21 May 2014
| 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-09-00389
| CHANDANA PERERA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 April 2014 | |
DATE OF JUDGMENT: | 21 May 2014 | |
CASE MAY BE CITED AS: | Perera v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 685 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the lumbar spine
Legislation Cited: Transport Accident Act 1986
Cases Cited:De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Spence v Gomez [2006] VSCA 48; Gennimatas v Transport Accident Commission (2002) 5 VR 547; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; Peak Engineering & Anor v McKenzie[2014] VSCA 67; Bezzina v Phi [2012] VSCA 161; Humphries & Anor v Poljak [1992] 2 VR 129; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C P Locke | Arnold Dallas McPherson |
| For the Defendant | Mr J Ruskin QC with Mr S Martin | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by him as a result of a transport accident in which he was involved on 5 February 2003, at which time the stationary vehicle in which he was seated was struck from behind by a four-wheel drive motor vehicle.
2 The injury the subject of the application involves an injury to his lumbar spine and the relevant impairment of body function is that of the lumbar spine.
3 In addition, the plaintiff asserts that by reason of the transport accident he has suffered from symptoms of pain which have restricted his ability to exercise, with the result that his weight increased significantly, which in turn caused him to develop diabetes.
4 In the application, the plaintiff relies upon three affidavits, dated 13 July 2003, 3 November 2010 and 26 June 2013 respectively and an affidavit sworn by his wife on 21 January 2014.
5 In addition, viva voce evidence was adduced from:
· The plaintiff; and
· Professor Jeffrey Zajac, an endocrinologist, who examined the plaintiff at the request of the defendant.
6 Otherwise the parties rely upon medical and other documents which they have tendered including the plaintiff’s income taxation returns between the financial years ending 30 June 1999 and 30 June 2012.
7 It is appropriate that I comment at this stage that given that it is my task to determine the consequences to the plaintiff at the present time of a transport accident which occurred some eleven years ago, the plaintiff’s position in establishing his entitlement to the leave which he seeks is not assisted by the fact that the most recent medical reports which deal with the condition of his lumbar spine are those authored by Mr Kevin King on 13 May 2007 and Mr Chris Baker on 29 September 2009.
8 In his first affidavit, the plaintiff described attending his general practitioner shortly after the happening of the accident and being referred for a CT scan of his lumbar spine, which was performed on 20 February 2003. He said that he was initially treated with physiotherapy, that his neck pain gradually resolved, but he had continued to suffer from symptoms of back pain. He said that he was referred by his general practitioner to Mr Patrick Byrne, orthopaedic surgeon, who he saw on a number of occasions until May 2013, that Mr Byrne recommended treatment in the form of physiotherapy and hydrotherapy but that that none of this treatment seemed to help him.
9 At the time at which prepared his first affidavit, the plaintiff said he continued to suffer from constant low back pain –
“… of varying severity depending on medication and activities. I continued to experience pain radiating into the outer side of my left thigh and left calf with associated numbness. … The pain was and continues to be aggravated when sitting generally for more than 30 minutes, bending, lifting and other forms of physical activity. I have managed the pain with Panadeine Forte but in general prefer to avoid medication of this sort because I have been warned of risks of addiction and damage to my long term health. I now prefer to take Panadol or preferably to lie down on the floor when the pain becomes bad as this helps moderate it. … .”[1]
[1]Plaintiff’s Court Book (“PCB”) 11
The plaintiff continued:
“I would lie down for short periods most days … I also manage my condition with an exercise program. …
My general practitioner referred me to Mr Brian Barrett, Orthopaedic Surgeon, on 7th September 2005. … He suggested surgery but explained that there were risks of complication and even if the operation went well, I would be out of work for an extended period. This put me off.”[2]
[2]PCB 11-12
10 The plaintiff deposed that:
· He had shortly, prior to the accident, taken out a lease on a new building where he proposed to practise as a graphic designer. He said that his business had never earned much money, explaining that after the birth of his daughter, his wife had returned to full-time work and he had worked part time. He said that while there were various reasons why his business had not been as profitable as he would have liked, his back had been a contributing factor, because he avoided taking on jobs which were physically inappropriate for him and because he had had time off work, either for physiotherapy treatment or to rest when his back was bad.
· Prior to sustaining his injury, he enjoyed jogging two or three times a week and on weekends, he would cycle for up to 1.5 hours each morning but that since the accident, he had avoided jogging and running, because it hurt his back, and had avoided bike riding.
· His symptoms of pain impacted upon his enjoyment of his pastimes of drawing, painting pictures and creating design work.
· He was restricted in his ability to play with his daughter, and her horseplay on occasion caused him pain.
· His pain interfered with his sleep.
· He wore a back brace when undertaking any physical activity around the house, and that he avoided activities requiring heavy lifting or repetitive bending.
11 In his second affidavit, the plaintiff deposed to the presence of symptoms and restrictions by reason of the presence of back pain similar to those he had set out in his first affidavit.
12 He described the presence of pain on most days, said that he found sleeping on his carpeted floor the most beneficial, and that he had not been able to return to mountain bike riding or jogging. He described his sleep as being interrupted by his pain and said that he managed to sleep less now than prior to the collision.
13 The plaintiff deposed to the fact that he and his wife had divorced and he attributed the decline in the relationship between himself and his wife to the symptoms and incapacity he had suffered as the result of the accident. He said that his ex-wife had become frustrated by his complaints of pain and the restrictions his condition placed upon him, such that their relationship had deteriorated to the extent that they divorced in 2008. He described this period as being very emotional and depressing for him.
14 The plaintiff said that during the years following his divorce, his taxation returns contained accounting errors as to the operation of his business which he had not picked up and which misrepresented his business expenses. The plaintiff said that he continued to work in his own business but suffered from pain and resultant limitations which he managed by taking breaks as required, but that his productivity was reduced.
15 In his third affidavit, the plaintiff said that:
· Prior to the accident, he was fit and that he looked after himself physically, and weighed in the vicinity of 78 kilograms.
· By February 2010 his weight had increased to almost 90 kilograms.
· In 2006, he had been diagnosed with Type 2 diabetes and was advised to exercise and to control his diet, but that he had been unsuccessful in doing so, with the result that in February 2010, he underwent LAP-band surgery as part of a surgical trial, which surgery was performed by Professor Paul O’Brien at the Rowville Medical Centre. He said that following the surgery, his weight had fallen to between 74 to 76 kilograms.
· He had had been advised by his general practitioner that he should walk regularly to assist the management of his diabetes and cholesterol, but that he found walking for more than 20 minutes aggravated his symptoms and caused him to experience pain in his left leg.
· Whilst his sleep had improved since undergoing LAP-band surgery, his sleep was still interrupted. He described the effect of the LAP-band surgery as leading to his appetite being reduced, which had assisted him in controlling his weight.
· In December 2010, he had married his current wife in Sri Lanka, that he had returned to Australia after his wedding and was subsequently joined in Australia by his wife and stepdaughter in July 2011.
· In March 2011, he had decided to cease to operate his graphic design business as he could not work the long hours the business required.
· In about March 2012, his wife had set up a graphics and signs business called “Smart Graphics”. His wife had hired a full-time employee to assist in the business, and that the plaintiff’s role was to assist the company as a consultant. He said that in that activity, he worked 15 to 20 hours per week, but his hours were flexible, and that his salary from this work was $26,000 per annum.
· He did not believe he could work full time by reason of his symptoms, that he had not done so since his accident and that the flexibility of self-employment allowed him to rest when he needed.
· He described suffering from increased levels of stress, anxiety and depression.
The viva voce evidence
16 In the course of his cross-examination the plaintiff:
· Said that he had trained as a visual designer in Sri Lanka and upon migrating to Australia, had undertaken a course which qualified him to work as a graphic designer. Upon completing that course, he had undertaken work as a graphic designer in self-employment since approximately 1999.
· Agreed that his earnings as a graphic designer were in accordance with those set out in the summary of his income taxation returns.[3] He explained his modest earnings as being the result of:
[3]Exhibit 2
(i) The birth of his daughter in 1999 and his decision to act as her primary carer to enable his wife to return to full-time employment;
(ii) His purchase of machinery so as to allow him to expand his business;
(iii) His employment of subcontractors and the costs associated with this employment;
(iv) His incapacity by reason of the transport accident;
(v) Accounting errors made by his accountant during the period of his divorce, at which time the plaintiff was depressed.
· Accepted[4] that both before and after the accident, the most that he earned in self-employment was $15,000 per annum and that the income paid to him by Smart Graphics (the business undertaken by his wife), namely $26,000 per annum which he received during the 2012-2013 financial year, was the most significant income which he had earned during his working life in Australia.
[4]At Transcript (“T”) 26, L29
17 In the course of his cross-examination
(i) It was put to the plaintiff:
§ That in the course of his employment with Smart Graphics he worked an 8 to 10-hour day and that this was consistent with the history given by the plaintiff to Mr Entwisle, a psychiatrist, who had examined him on behalf of the defendant. The plaintiff denied this position, saying that he was in and out of the office and that sometimes he would go home to rest. He said that he did not work full time and modified his starting and finishing times on any given day in order to accommodate his symptoms.
§ He would normally arrive at the office at 10.00am and leave at 6.30pm. The plaintiff maintained the position that this was not his usual pattern of work, stating that on some days he would leave work at 2.00pm or 3.00pm.
§ The business operated by his wife was currently on the market and that his wife intended to sell the business if she could find a buyer. He said that he had tried to find other employment “but I couldn’t because of the back injury, they actually said that they can’t take me, some companies, we’ll let you know later”.
(ii) The plaintiff was asked:
Q:“So you’re in the office but you’re probably in the office between eight and ten hours?---
A:Because my wife is there and her work is there so she’s the one doing the work, I’m just there to support them sometimes, it doesn’t mean I’m working there all day.”[5]
(iii) The plaintiff agreed that he had consulted a psychiatrist or a psychologist on two occasions at the time he was going through his marriage breakup.
[5]T31, L17-21
18 It is clear that throughout the period in which the plaintiff was self-employed, there were huge variations in his income and that the operation of his business regularly returned very significant losses.
19 I found the plaintiff’s attempt to explain the variation both in his earnings and expense levels to be confusing and at times unlikely. See in particular the cross-examination at Transcript 22, Line 4 to Transcript 24, Line 25.
20 I also found the plaintiff’s evidence as to the hours he was capable of working not to be persuasive, when considered in the context of the time that he was often present at the workplace and the description of the type of work which he undertook which largely involved meeting clients, speaking to clients on the telephone and emailing designs to clients. I find it difficult to reconcile the plaintiff‘s evidence that he was often able to remain within his office for eight or so hours for the purpose of supporting his wife and the other staff, with his assertion that he would not be capable during that time of performing the activities involved in his own work to which I have referred.
21 In the course of cross-examination it was put to the plaintiff that the accident had no impact upon the stability of his relationship with his former wife and that there had been problems in the marriage since 1999.
22 The plaintiff vehemently denied this suggestion. Given the vehemence with which the plaintiff denied this suggestion and the reason he proffered for that denial, I am satisfied that the history in the report of Dr Entwisle dated 8 November 2010 as to the timing of the onset of the plaintiff’s matrimonial difficulties is probably incorrect. I am also satisfied that the plaintiff holds a genuine belief that problems which caused the failure of his first marriage were at the very least contributed to by the transport accident.
23 The role of the transport accident in the ending of the plaintiff’s first marriage clearly involves the plaintiff’s subjective assessment of a very emotional issue. Notwithstanding the plaintiff’s subjective belief as to this issue, I am satisfied that I should be cautious in accepting the plaintiff’s statements as to the influence which the transport accident had in causing the breakup of his marriage in the absence of persuasive evidence which supports the plaintiff’s evidence on this issue.
24 In this regard the evidence by the plaintiff that he had consulted a psychiatrist or a psychologist for counselling associated with his marriage problems, in combination with the failure by the plaintiff to adduce evidence either from that source or from a friend who could support the plaintiff’s position, leads me to the conclusion that I should not accept the plaintiff’s evidence as being reliable on this issue.
25 The plaintiff agreed that he had consulted a psychologist on six or seven occasions to assist him with the emotional sequelae of the transport accident. He agreed that his new marriage had improved his mental state.
26 The plaintiff said that:
· He employed Nurofen three or four times a week to manage his symptoms.
· He had attended physiotherapy sessions twice a week but had stopped a month or so ago because of the money involved.
· He had ceased using a treadmill because it aggravated the symptoms in his leg.
· He belonged to a Church group, attended bible classes on Sunday nights and that his involvement in the Church group had assisted him psychologically.
27 The plaintiff was shown two surveillance DVD films. He accepted:
· That in the first DVD, he was shown leaning into a car with his back bent and lifting something out.
· That he had been depicted squatting on some ten consecutive occasions, at which time he was moving freely; and
· That he was depicted as moving freely in the surveillance film.
28 The plaintiff said that it was his practice to conceal his pain from his clients but that he normally suffered from symptoms so severe that they were appropriately described as being constantly at a level of approximately 8 out of 10 and that that this was an accurate description of the level of his pain during the periods depicted in the surveillance material.
29 As to the surveillance film, I formed the view, having regard to the brevity of the film and the relative lack of activity undertaken by the plaintiff as depicted in the film, that the film had no real relevance to the capacity or otherwise of the plaintiff for general activity.
30 I am satisfied however that the plaintiff’s movements generally during the periods in which the film was shown were unguarded, and that they did not appear to be restricted. I formed the distinct impression that they were inconsistent with the way in which someone would be likely to move if he were truly suffering symptoms of back pain appropriately described as being constantly at a level of 8 out of 10, which I interpret as a statement that the plaintiff’s pain symptoms are the more severe end of the pain spectrum.
31 My impression in this regard is in turn supported by the plaintiff’s modest use of medication to control his symptoms and the inconsistency between the plaintiff’s current complaints as to his levels of pain and the complaints made by the plaintiff to Mr King[6] and Mr Barrett.[7] Further, the plaintiff’s position in this regard derives no assistance from the absence of any current medical evidence which supports his assertion as to the severity of his symptoms.
[6]The plaintiff described his level of pain to Mr King as constant aching and discomfort – at PCB 47
[7]The plaintiff told Mr Barrett that his back pain was constantly present but fluctuating in intensity – at PCB 38
32 Given the matters to which I have referred above I am not satisfied that the plaintiff is a reliable historian as to the level of his symptoms of pain. This finding in turn affects the findings which I am required to make as to the consequences of the transport accident upon the plaintiff insofar as those consequences are secondary to the pain which he experiences.
The affidavit of Rannula Fonseka
33 The plaintiff’s wife has sworn an affidavit dated 28 June 2013, in which she deposed:
· That the plaintiff often complained to her of back pain, slept restlessly and quite often slept on the floor.
· That the plaintiff suffered from severe back pain during winter and appeared depressed and had told her that he feels worthless due to his ongoing problems.
· Her husband sometimes vomits after he eats, which he reported to her was the result of his LAP-band surgery.
· She had taken over the running of her husband’s former business, which was facing collapse, and had employed her savings to that end.
· In March 2012, she commenced a graphics and signs business called ‘Smart Graphics and Signs Pty Ltd’, in which she hired a full-time employee to assist her. Her husband worked on a part-time basis, for which he was paid the salary of $26,000 per annum. She said that her husband worked around 15 to 20 hours per week but that “his hours are flexible given the circumstances of the business and his symptoms”.
The medical evidence relevant to the injury to the Plaintiff’s spine
Dr Anne Sellathurai
34 On 18 December 2005, the plaintiff’s general practitioner, Dr Anne Sellathurai, provided a medical report[8] in which she stated that following the transport accident check, the plaintiff had developed neck and back pain secondary to ruptures involving his L4-5 and L5-S1 discs “both with significant splits in the posterior portion of the annulus and both bulging into the vertebral canal to a certain degree”[9] and that his condition had not stabilised.
[8]PCB 33-34
[9]PCB 33
Mr Patrick Byrne
35 In a report dated 17 May 2006,[10] Mr Patrick Byrne, an orthopaedic surgeon, reported that he had first assessed the plaintiff on 4 March 2003.
[10]PCB 41-43
36 Mr Byrne commented that the plaintiff presented at that time with a history of persisting back pain localised in the lumbosacral junction with no radiation into his lower limb.
37 On reviewing the plaintiff on 25 March 2003, Mr Byrne commented that the plaintiff continued to complain of lower back pain, his symptoms being such that he had difficulty sitting for prolonged periods, there being no improvement in his pain since his previous reviews.
38 Mr Byrne referred the plaintiff for an MRI scan which was undertaken on 7 April 2003. He reported that scan as revealing the presence of:
· Degenerative changes at L4-5 and L5-S1.
· An annular fissure at the L4-5 level which was associated with a broadbased disc bulge
· An annular fissure L5-S1, together with a mid line disc protrusion.
39 Mr Byrne opined that he felt that the plaintiff’s pain would settle down given time, but commented:
“… As to whether his pain would ultimately resolve was difficult to state as of my last review. It has failed to improve dramatically despite physiotherapy and hydrotherapy. …
I cannot state whether his injuries have stabilised as I have not reviewed him since the 1st May 2003. At that stage he was still having ongoing pain but his symptoms were static.”[11]
[11]PCB 43
Mr Brian Barrett
40 Dr Sellathurai referred the plaintiff to Mr Brian Barrett, an orthopaedic surgeon, who saw him on 7 September 2005 and on 6 October 2005.
41 In a report dated 14 November 2005,[12] Mr Barrett commented that the plaintiff:
[12]PCB 38
· Presented with a history of neck and back pain following a transport accident (the earlier symptoms having settled).
· Described symptoms of low-back pain which were present centrally and constantly, with fluctuations in severity, together with pain radiating into the left posterior thigh to calf region, associated with intermittent outer calf numbness.
· Reported that his symptoms:
§ Were aggravated by prolonged sitting, by bending, lifting and other heavy physical activity and were only improved by taking analgesia and lying on the floor;
§ Had not improved over the two-year period since the accident and that he continued to have treatment by way of physiotherapy, which provided him with only temporary relief.
42 Mr Barrett opined;
· That the plaintiff presented with injuries consisting of posterior ruptures involving the L4-5 and the L5-S1 lumbar discs with significant protrusions causing left L5 root sciatica.
· That the plaintiff’s prognosis was for his symptoms to continue into the foreseeable future.
· That the plaintiff’s injuries had stabilised, in the sense that they had not significantly improved or deteriorated over the past two years and that the plaintiff’s symptoms –
“… are minimised by avoiding significant physical activities particularly prolonged stooping and heavy lifting situations. This impacts on his current employment and potential manual work in the future.”[13]
[13]PCB 40
Dr Clayton Thomas
· Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, opined, on behalf of the Transport Accident Commission, upon the plaintiff’s condition on 13 November 2005, at which time he obtained a history from the plaintiff:
§ That he suffered from lower back pain and left leg numbness which limited his ability to sit, his sitting tolerance being limited to approximately half-an-hour;
§ That he was restricted in his ability to work and that the nature of his back condition limited his ability to perform the heavier duties involved in his employment as a graphic designer and signwriter;
§ That his sleep was poor but was not necessarily interrupted by pain;
§ That he had continued to work full time but was unable to undertake the heavier aspects of his work.
43 Dr Thomas reviewed the plaintiff’s MRI of 15 September 2005, commenting that it showed the presence of:
(i) L4-5 and L5-S1 disc degeneration with mild loss of disc height;
(ii) Central disc bulges at both L4-5 and L5-S1 tending more towards the left than the right, but no evidence of neurological compromise;
(iii) Annular tears also at the L4-5 and L5-S1 disc level posteriorly.[14]
[14]PCB 36
44 Dr Thomas opined:
“… I think that the MRI has delineated the nature of his spinal complain[t]. I think that he does have some evidence of left leg pain arising from his back. He has restricted straight leg raise. He has a sensation of the leg dragging when he walks and he reports numbness, although clinically”
and further:
“The accident therefore has been responsible for symptoms arising from his low back and the symptoms that he has in his left leg. I think his symptoms are arising at a discogenic level at either L4/5 or L5/S1 or both.”[15]
[15]PCB 36
45 Dr Thomas opined:
· That he considered the plaintiff’s current physiotherapy to be palliative in nature without any durable improvement and that the plaintiff was capable of looking after his problem in a self-managed way;
· That he did not consider there to be any psychological factors or Chronic Pain Syndrome contributing to the plaintiff’s problems; and
· That ongoing conservative treatment was appropriate.
Mr Kevin King
46 Mr Kevin King, an orthopaedic surgeon, examined the plaintiff on 17 May 2007.[16]
[16]PCB 45-50
47 On that occasion, the plaintiff presented to Mr King with a history of –
(i) A constant aching pain in the low back, present day and night and fluctuating in intensity, usually of moderate severity with occasional severe flare-ups;
(ii) Constant aching, discomfort and numbness in the back of the left buttock, thigh and calf of moderate severity, aggravated by exertion.
48 Having examined the plaintiff and reviewed the relevant radiology, Mr King opined:
· That in the transport accident, the plaintiff had sustained significant trauma to his lumbar discs and associated ligamentous structures at multiple levels, but particularly at the L4-5 and L5-S1 levels, which soft tissue injuries would adequately explain the immediate onset of low-back pain and the later development of sciatica, together with the persistence of those symptoms.
· That he found no evidence of any significant functional overlay.
· That the plaintiff presented as a well-motivated man who was chronically disabled to a moderately severe degree by persistent low-back pain and left sciatica, all the result of the injuries sustained by him in the transport accident.
· That the plaintiff appeared to be stabilised and managed to undertake his work as a graphics designer “working from home on the basis of some restriction of his hours”.
49 Mr King opined that the plaintiff would “continue on symptomatic treatment, mainly on the form of analgesics and intermittent physiotherapy”[17] and commented:
“… He should be able to continue with his light sedentary job as a graphics designer working from home but on the basis of slightly reduced hours – he finds 30 hours about the maximum he can cope with without a flare up of back pain.”[18]
[17]PCB 49
[18]PCB 50
Dr Chris Baker
50 On 29 September 2009, the plaintiff was assessed by Dr Chris Baker, a specialist in occupational medicine, at the referral of the defendant.
51 On that occasion, Mr Baker reports obtaining a history from the plaintiff:
· That he was working full time, being able to choose his hours depending on workload and other commitments.
· That he continued to suffer from low-back pain which involved central pain and “a funny feeling” down the left leg, which he had become used to.
· That he had a tolerance for walking for 20 to 30 minutes, a sitting tolerance limited to about 20 minutes and a poor sleep pattern.
· That he was not taking any medication to deal with his symptoms.
52 Upon assessing the relevant radiology, Mr Baker opined:
(i) That the plaintiff presented as an honest, straightforward historian who had suffered damage to his L4-5 and L5-S1 discs as the result of a transport accident, as the result of which he was suffering from persistent low-grade back pain and pain into the left leg. Dr Baker opined:
“… I consider he will continue to experience symptoms into the foreseeable future and the only way he will reduce his symptomology will be by weight loss and back strengthening. Even with such treatment there may not be much improvement in his symptoms.”[19]
[19]Defendant’s Court Book (“DCB”) 30
(ii) That he would have expected the plaintiff to be fit to work full time in his business, noting that the plaintiff was able to modify his hours, and in that sense, that he was not suffering with a significant impairment in undertaking his work by reason of his back, commenting:
“At the time I assessed him I considered he was depressed and I would consider his depression is having an impact on his level of physical activity and motivation, however, he presented in an honest straightforward manner ….”[20]
[20]DCB 30
53 I am satisfied on the basis of the medical reports by:[21]
[21]I find the content of each of each of these reports to be largely consistent and in that sense persuasive when considered as a whole in establishing each of these positions.
(i) Mr Baker;
(ii) Mr King;
(iii) Mr Barrett;
(iv) Dr Thomas;
that the following positions as to the effect of the transport accident upon the plaintiff have been established, namely that:
· The plaintiff had suffered an injury involving some degree of trauma to his L4-5 and L5-S1 discs.
· The plaintiff presented, at the time of their respective assessments, as truthful historian.
· Within two years or so of the transport accident, the plaintiff’s condition had stabilised and was likely to be responsible for continuing symptoms which fluctuated in intensity and that his symptoms were capable of being managed conservatively.
· The plaintiff’s condition was such that it largely allowed him to work on a full time basis by avoiding the heavier physical aspects of his work, altering his position and posture as required.
54 In contrast to the opinions to which I have referred above, I find the conclusions expressed by Mr Robert Dickens (an orthopaedic surgeon whose evidence is relied upon by the defendant), in his series of reports, to be inconsistent in the conclusions expressed and to be unpersuasive.
55 Mr Dickens, when first assessing the plaintiff in July 2009, opined:
·“[T]his gentleman has central prolapsed (sic) of the disc at L4/5 and L5/S1. Whether these were caused by the accident or whether the accident has aggravated the underlying pathology is impossible to say. There were no other injuries or diseases preexisting the accident aggravated or being aggravated by the accident and there appeared to be no other injury or disease arising since the accident aggravating or being aggravated by the accident.”[22]
[22]DCB 16.4
· That the injuries to the plaintiff’s lumbosacral spine were consistent with the accident.
· That the prognosis for the plaintiff’s injury was a little difficult to predict.
· That the plaintiff presented with low-back pain, extending into his left leg, the pain being in the lumbosacral region, his back pain being more a problem than his leg pain.[23]
[23]I note that Mr Dickens took no issue with the severity of the symptoms as described to him by the plaintiff on this occasion.
56 On 7 February, 2011, Mr Dickens took a history of symptoms from the plaintiff similar to that at the time of his previous assessment.
57 On this occasion, Mr Dickens:
· Opined that the plaintiff presented with chronic back pain and sciatic symptoms in the left leg but opined that whilst –
“… he will have ongoing episodes of pain on and off in his back that … the accident related to his spine is now virtually resolved and we are simply seeing the natural history of someone who has degenerative pathology in his lumbar spine.”[24]
[24]DCB 17.5
· Took no issue with the fact that the plaintiff’s symptoms may, to some extent, impact upon his ability to undertake some of the activities involved as a graphic designer, signmaker and printer and expressed the view that those limitations arose by reason of the natural history of the plaintiff’s constitutional degenerative lumbosacral arthritis and not by reason of the accident;.
· Commented that the plaintiff was likely, by reason of that condition, to experience ongoing symptoms in his lumbosacral spine which were chronic in nature and would continue without substantial deterioration in severity.
58 In a report dated 27 May 2013, Mr Dickens expresses a similar position.
59 I do not find the opinions expressed by Mr Dickens to be persuasive for the following reasons:
· The initial opinion expressed by Mr Dickens was that the plaintiff was presenting with symptoms emanating from the transport accident which had either caused or aggravated the pathology demonstrated to be present at the plaintiff’s L4-5 and L5-S1 lumbar levels. I interpret Mr Dickens’ position at this time to be broadly consistent with that of Mr Barrett, Dr Thomas and Dr Baker as to the mechanism of the plaintiff’s injury.
· I find the opinion subsequently expressed by Mr Dickens that the plaintiff was, by 2011, presenting with no accident-related symptoms but with symptoms driven by a pre-existing degenerative condition in his lumbar spine, to be unpersuasive, particularly given the absence of any explanation by Mr Dickens as to the way in which the symptoms which he accepted initially as being secondary to the transport accident, subsequently became sponsored and maintained solely by the progression of a constitutional degenerative condition in the plaintiff’s lumbar spine.
· In circumstances in which Mr Dickens was unable to exclude one way or another the accident as being responsible for causing the pathology which he now opines is responsible for the plaintiff’s chronic symptoms, his opinion that that pathology as at 2011 and 2013 was not caused by the transport accident involves, in my opinion, a quantum leap in analysis, which I find totally unpersuasive.
60 Whilst it was put on behalf of the defendant that the absence of any recent medical evidence as to the condition of the plaintiff’s lumbar spine makes it impossible to assess the consequences of the injury occasioned to the plaintiff’s lumbar spine in the transport accident at the present time, I am satisfied, given:
(i) The preponderance of the medical evidence in this case that the transport accident was responsible for occasioning traumatic injuries to the plaintiff’s L4-5 and L5-S1 discs and that the plaintiff’s continuing symptoms emanate from those injuries;
(ii) The opinions expressed by the various medical experts to which I have referred as being persuasive, that the plaintiff’s condition was largely stabilised within two or three years after the accident and that the plaintiff was likely to continue to experience ongoing symptoms thereafter;
that the injuries suffered by the plaintiff as the result of the transport accident were such that they would be likely to cause the plaintiff to suffer ongoing symptoms as at the present date.
61 Given however:
· The plaintiff’s modest recourse to medication to manage his symptoms;
· The absence of current persuasive medical evidence as to the severity of the plaintiff’s symptoms;
· My finding as to the plaintiff’s lack of reliability as to the level of his pain and its influence upon his capacity to undertake relatively full-time self-paced work;
I find myself, as I have previously observed, to be uncertain as to the severity of the plaintiff’s accident-related pain and the consequences of that pain upon his life and lifestyle.
The medical evidence as to the relationship between the transport accident and the development by the Plaintiff of diabetes
62 There is no issue that the plaintiff was diagnosed as suffering from Type 2 diabetes in 2006 at which time he had gained in the vicinity of 15 kilograms in weight when compared with his weight at the time of the transport accident.
63 It is put on behalf of the plaintiff that the nature of his back condition was such that it precluded him from the rigorous forms of exercise in which he engaged prior to the accident and that his inability to exercise had been responsible for this increase in his weight which in turn was responsible for his development of diabetes.
64 In a report dated 30 October 2013, Associate Professor Douglas Lording, consultant in diabetes, endocrinologist and reproductive medicine, opined:
“It is impossible to know whether Mr Perera would have developed diabetes at the time that he did had the accident not occurred. The absence of a clear family history does not preclude the development of diabetes. The amount of weight gain was not all that marked according to the history.[[25]] I have no indication of whether he had blood glucose testing prior to the accident, in the years after, nor do I know what the levels were at the time of the diagnosis. Accepting that he did not have diabetes previously and that it was now diagnosed in 2006, it is possible that the higher weight and reduced physical activity have contributed to it being diagnosed at that time. I would be reluctant to suggest that it caused the diabetes.”[26]
[25]Relevantly, Associate Professor Lording, notwithstanding the fact that he had been advised by the plaintiff that he had put on approximately 12 to 15 kilograms, in expressing his opinion as to causation, seems to have adopted the position that the plaintiff’s weight gain was only 7 kilograms.
[26]PCB 53
65 Associate Professor Lording described the plaintiff’s diabetic condition in the following terms:
· Diabetes is an important medical problem, which has the capacity to cause increased macrovascular disease (heart disease, stroke and peripheral vascular disease) and a number of other so-called microvascular complications (affecting the eyes, kidneys and peripheral nerves and other tissues).
· The plaintiff did not appear to have any of these complications at the present time.
· Diabetes tends to be a progressive disease:
“Not all patients end up with complications. The macrovascular complications are also affected by obesity, inactivity, hypercholesterolaemia, hypertension and cigarette smoking. He does have hyperlipidaemia and is on Crestor. I do not know how well controlled his lipis are. He is not obese at the present time. He certainly has limited physical capacity. The macrovascular complications are more related to the duration of diabetes and the level of control … .
… It appears that despite the 17 kg weight loss, diabetes has remained an issue and needs oral hypoglycaemic medication and therefore it is likely that he will need to continue on treatment. Diabetes does tend to progress and as years go by more treatment is required. Initially, this is usually using a second and perhaps a third family of oral hypoglycaemic drugs and sometimes there is a need to use insulin therapy in longer term diabetes.”[27]
[27]DCB 53-54
66 Professor Jeffrey Zajac, an endocrinologist, in a report dated 12 February 2014, opined:
“The aetiology of type 2 diabetes is partly genetic and partly environmental. His father had type 2 diabetes. It is clear that in patients who are overweight and unable to do exercise who have a family history of diabetes this illness is more common. I note that all the reports highlight his lack of ability to do exercise because of ongoing back pain and this will have exacerbated and may have contributed to the onset of his diabetes. Chronic pain, depression and anxiety can also cause changes which can precipitate elevation in blood glucose levels – therefore contributing to the diabetes. Thus the accident is not the sole cause of his type 2 diabetes but in my opinion it is highly likely to have contributed to the onset of the diabetes.”[28]
[28]DCB 39.3
67 In answer to the question:
“In your opinion, based on the history provided by the claimant and the clinical records to what extent of the claimant’s weight gain and loss of physical fitness contributed or been a cause of the development of the diabetes?”
(sic)
Professor Zajac responded:
“As noted above loss of physical activity and weight gain will have directly contributed to the onset and continuing poor control of his diabetes.”[29]
[29]DCB 39.3
68 Whilst in his report Professor Zajac commented that, in his opinion, the plaintiff’s LAP-banding surgery was not necessary, he commented:
“At the time of his operation his weight was 85kg and BMI slightly over 29 Most endocrinologists myself included would not think that LAP banding surgery was indicated at that level even in someone who was not able to exercise. I note the comment in the file that he was randomised to surgery and therefore assume he was in a clinical trial. Clearly in terms of research in an informed patient this is a separate question. In a clinical practice I would not consider LAP banding surgery in such a patient and in particular in this patient under the circumstances described. … .”
69 Notwithstanding the question put to Professor Zajac and his response, it is not put on behalf of the defendant that the plaintiff’s decision to undergo LAP-band surgery was unreasonable or that the plaintiff’s decision to undergo the surgery was such that it should in any way influence my decision as to the surgery and its outcome being regarded as a consequence of the transport accident should I be satisfied that the plaintiff’s diabetic condition arose as a result of the transport accident.
70 In a further report dated 28 March 2014, Professor Zajac opined upon the issue as to whether, but for the transport accident, the plaintiff would have developed Type 2 diabetes, commenting:
“… on the balance of probability it is likely he would have become diabetic even if the accident had not occurred. It is possible that the onset of the diabetes would have been at the same time or a later date. If the accident had not occurred and if he had exercised and had an excellent diet it is likely the [dia]betes would have declared itself later. This is difficult to predict.”[30]
[30]DCB 39.5
71 Professor Zajac gave evidence in the course of the proceeding.
72 In the course of his evidence, Professor Zajac:
(i) Listed the complications associated with diabetes as including:
§ Blindness
§ Renal problems which can result in renal failure
§ Problems with blood vessels causing heart disease and strokes and blockages of the arteries in the legs.
(ii) Said that the plaintiff’s diabetes was under excellent control. He said that Type 2 diabetes was usually found in older people but “it’s starting to affect younger people now”. He described the cause of Type 2 diabetes as being a combination of a person’s genetic background and environmental factors such as weight, the level of exercise, the nature of food which is ingested, stresses and illnesses;
(iii) Maintained the position he had taken in his report, namely that the odds were that absent the transport accident, the plaintiff would have developed diabetes at some later time;[31]
[31]T59, L28
(iv) Commented that diabetes was regarded as a serious medical condition;
(v) Opined that the plaintiff’s:
“… control is still not perfect in that he’s still on medication so it’s not as if he’s been cured of his diabetes but if you ask me what his current degree of his control the target is 7.0 and he was below the target in 2012 which is adequate control, good control, excellent control.”
(vi) Further opined that even if perfect control, the plaintiff’s risk of developing complications associated with his diabetes were still higher than the community, and stated that the plaintiff would never recover from his diabetes.
73 In re-examination, Professor Zajac said he could not say with any precision when in the future the plaintiff may have developed diabetes absent the gain in his weight which was a contributor to the onset of diabetes in this instance.
74 As to whether the plaintiff would have developed diabetes in the absence of the transport accident, Professor Zajac opined:
“I would answer it this way, he has got it now and the odds are he would have got it whatever happened. It may have been later but as you say I cannot say one hundred per cent for certain but there are not many things in medicine you can say one hundred per cent for certain.”[32]
[32]T59, L27 – T60, L1
75 Professor Zajac agreed that the plaintiff’s inability to resume vigorous exercise, any gain in his weight, the presence of chronic pain, depression and anxiety are all risk factors for diabetes and that –
“… even with perfect control the risk of complications is still higher than the community.”[33]
[33]T62, L18-20
76 Professor Zajac opined that the plaintiff would never recover from his diabetes. He listed the complications associated with diabetes,[34] commenting:
“If you get the complications of diabetes medically speaking you’re in trouble.”[35]
[34]T64
[35]T65, L2-4
77 Professor Zajac commented that he thought that most people did not stick to their diet and exercise regime as well as they could –
“… and the worse your control because of your lifestyle, the higher the risk of complications.”[36]
[36]T65, L11-12
78 Professor Zajac accepted that he was unable to say when, in the future, the plaintiff may have developed diabetes in the absence of his weight gain,[37] commenting:
A:“Well, I guess the dominant paradigm of my line of work is to keep people as close to normal as possible with the understanding the evidence suggests they will be less likely to get complications, yes.
Q:The better the control the less likely?---
A:On average, not in an individual, on average.”[38]
[37]T66
[38]T67, L19-25
Causation
79 It was put on behalf of the defendant that, in deciding whether or not the plaintiff’s diabetes was relevantly caused by the transport accident, it was incumbent upon the plaintiff to establish causation on the balance of probabilities.
80 In asserting this position on behalf of the defendant, Mr Ruskin QC essentially relies upon the decision by the Court of Appeal in De Agostino v Leatch & Transport Accident Commission.[39]
[39][2011] VSCA 249
81 In De Agostino, the Court of Appeal made no specific statement as to the test to be applied when determining causation and the position contended for by the defendant arises by reason of an inferential analysis of the reasoning which supported the findings made by the court in that instance.
82 In my opinion the position contended for by the defendant is inconsistent with specific statements as to the approach to be taken in determining causation made by the Court of Appeal in Spence v Gomez[40] and by Ashley J (as he then was) in Gennimatas v Transport Accident Commission.[41] In both cases it was accepted that causation for the purposes of the Transport Accident Act was established if the evidence establishes that a transport accident was a cause of the condition with which the plaintiff presented.
[40] [2006] VSCA 48 at [26]
[41](2002) 5 VR 547 at [37]
83 If a conflict arises between the statements as to causation made by the Court of Appeal in De Agostino and in Spence (about which I remain unconvinced), I am satisfied; having regard to the specific statements upon the issue in Spence and the consistency between the decision in Spence and that in Gennimata, that I should determine the question of causation by applying the approach as set out in March v March v E & MH Stramare Pty Ltd[42] and Tubemakers of Australia Ltd v Fernandez.[43]
[42](1991) 171 CLR 506
[43](1976) 10 ALR 303
84 It follows that in this instance I should find causation to be established if I am satisfied that the transport accident was a cause of the plaintiff developing diabetes or any other accident related consequence.
Findings as to the relationship between the transport accident and the Plaintiff’s diabetes and the consequences of that condition
85 Given the rather discrete nature of the consequences to the plaintiff of the diabetes from which he now suffers, I am satisfied that it is appropriate to approach the analysis of the current proceeding by examining separately the primary consequences to the plaintiff of the transport accident, being those arising by reason of the injury suffered to the plaintiff’s lumbar spine discretely from the consequences arising by reason of the plaintiff’s diabetes.
86 I am satisfied, for the reasons expressed by Professor Zajac, that the transport accident was a cause of the plaintiff developing diabetes.
87 Professor Zajac impressed me as a reliable witness, well qualified to express an opinion on the issue, and I prefer the more robust opinion as to causation expressed by Professor Zajac when compared to that expressed by Associate Professor Lording.[44]
[44]In making this statement, I note that Associate Professor Lording opined that he would be reluctant to suggest that the transport accident caused the plaintiff’s diabetes but did not opine upon the relevant issue as to whether the transport accident was a cause of the plaintiff’s diabetes.
88 In assessing the consequences to the plaintiff of his diabetic condition, the evidence satisfies me that, whilst the transport accident has been relevantly responsible for the development of the plaintiff’s diabetes, this condition would probably have manifested itself independently of the influence of the transport accident at some stage in the plaintiff’s life. It follows that I do not accept the position contended for by Mr Locke on behalf of the plaintiff that the evidence discloses no more than a risk of the plaintiff developing diabetes independently of the influence of the transport accident.
89 Given:
· The structure of the Transport Accident Act which requires me to focus upon the impairment of body function arising by reason of the transport accident as assessed by considering the consequences to the plaintiff of that impairment, independently of the consequences of any condition which may arise independently of the transport accident;[45]
[45] See Peak Engineering & Anor v McKenzie [2014] VSCA 67 (9 April 2014). Although Peak dealt with co-existing condition, I am satisfied that the analysis employed by the Court of appeal in Peak is apposite in this instance. See also Bezzina v Phi [2012] VSCA 161
· My satisfaction that, even in the absence of the transport accident the plaintiff would have developed diabetes at some stage in his life;
I am satisfied that the approach which I should adopt in assessing the consequences to the plaintiff of his diabetes is to take into account only those consequences which arise by reason of the bringing forward of that condition by the transport accident.
90 Approaching my analysis of this issue on that footing I am satisfied that the plaintiff’s decision to undergo surgery in the form of a gastric banding procedure – motivated as it was by reason of the difficulty encountered by the plaintiff in controlling his weight – is a consequence which arises in a direct sense by reason of the transport accident, there being no evidence that but for the transport accident, the plaintiff would have gained weight or that he would have received advice that it was appropriate for him to employ gastric banding to control his weight by reason of his development of diabetes.
91 It follows that I am satisfied that the transport accident was a relevant cause of the plaintiff undergoing his gastric banding surgery and his requirement at a relatively young age to control his diet so as to maintain his current weight.
92 As to the fact that the plaintiff’s diabetic condition exposes him to the possibility of developing a number of very serious medical conditions,[46] there is no evidence that the plaintiff’s development of diabetes at this stage of his life in any way increased the risk to the plaintiff of any of the relevant complications manifesting themselves when compared with the risk to which the plaintiff would have been exposed had his diabetic condition manifested itself at some latter time in his life. Neither is there any evidence that the plaintiff’s exposure to the risk of the development of the any of the complications has had an effect to date upon the plaintiff in an emotional or physical sense.
[46]The raft of complications associated with that condition are described by Associate Professor Lording in his report and Professor Zajac in his evidence. The evidence satisfies me that the risk of the plaintiff developing those complications remains a real one, notwithstanding the plaintiff’s excellent control.
93 In the circumstances given my finding that, independently of the transport accident the plaintiff would have developed diabetes in any event, in the absence of such evidence I am not satisfied that it is appropriate in this application that I take into account the exposure of the plaintiff to the risk that he might develop any of the complications associated with diabetes.
94 While I am satisfied that it is likely that the plaintiff’s gastric banding surgery would have a negative impact upon the amount of food that he could tolerate, given the absence of any sworn evidence by the plaintiff as to the negative impact of his gastric banding surgery, I am not satisfied that the surgery impacts upon the plaintiff such that it causes him to vomit regularly after eating.
95 Rather, I find it likely that the description of the plaintiff’s wife that these symptoms manifested themselves “sometimes” represents a more accurate and persuasive description of the situation.
96 That the plaintiff makes no mention of such symptoms in his affidavits however suggests that they do not present as a problem of any great significance to him.
Analysis of the consequences of the Plaintiff’s disability associated with the condition in his lumbar spine
97 As I have previously stated:
· I am satisfied that the transport accident was a relevant cause of the plaintiff suffering an injury to his L4-5 and L5-S1 discs, the effect of which has been to expose him to a long-term impairment of the function of his lumbar spine such that he experiences symptoms of pain and restriction of movement in his spine.
· As to the level of those symptoms, for the reasons earlier mentioned including the fact that the plaintiff manages his condition with modest levels of non-prescription pain relief and has not required medical treatment for a considerable period of time to assist him in the management of those symptoms, I am not satisfied that the plaintiff’s description of his level of pain as being 8 out of 10 is reliable.
Rather, my impression of the evidence is that his level of pain is more likely to be in the nature of that described by Dr Baker in his report of September 2009, namely as involving a constant and low-grade back pain which I accept would be likely to be associated with occasional flare-ups with exertion.
On this basis I am satisfied that any influence which the plaintiff’s pain exerts upon his ability to sleep, work or to engage in other than strenuous activity, would be modest and capable of management without resort to medical treatment or prescription medication.
98 I am further satisfied that one of the impacts upon the plaintiff of his spinal injury is that the symptoms associated with that injury have been such as to preclude him from his previous regime of regular physical exercise, and that his weight gain secondary to his diminished regime of exercise was responsible for his development of the diabetic condition from which he now suffers and as such, responsible for the plaintiff’s decision to a undergo a gastric banding procedure and the consequences associated with that procedure to which I have previously referred.
99 I am satisfied that the plaintiff’s back condition limits him in his ability to undertake heavy physical activity and affects his tolerance for prolonged sitting or bending.
100 Having regard to:
(i) The history given by the plaintiff to Dr Baker in 2009 that he was working full time;
(ii) The similar history obtained by Dr Thomas in November 2005;
(iii) The opinion expressed by Mr King as at May 2007 that the plaintiff was managing to cope with 30 hours of work per week, albeit with some difficulty;
(iv) The plaintiff’s evidence that although he is paid for working restricted hours, his work pattern was such that on some days he worked full time and on other days he did not, and that he remained at the office up to eight to ten hours, but that on some days he left not at 6.30pm but between 2.00 and 3.00pm;
I am satisfied that, whilst the plaintiff’s symptoms may impact upon his ability to engage in the activities involved in his profession as a graphic designer and signwriter, the plaintiff is largely able to carry out most of the activities involved in that occupation on a full time, but self-regulated, basis.
101 I am not satisfied that the plaintiff has established that his symptoms are such that they restrict him from engaging in employment such that he has in the past or continues to suffer an economic loss which can be quantified as arising as a result of the transport accident.
102 I am satisfied, as I have indicated earlier however, that the plaintiff has sustained an injury which limits his ability to engage in unrestricted work and would most probably make him less attractive to an employer wishing to employ a graphic designer and signwriter in the open market.
103 I further accept the position that the plaintiff’s injury has precluded him from engaging in the robust levels of physical exercise which he enjoyed prior to his transport accident which included running and mountain bike riding.
104 I accept the opinion of Dr Entwisle that the plaintiff does not present with psychiatric symptoms or condition. I am satisfied however that the ongoing restrictions in the plaintiff’s life, both with respect to his ability to engage in unrestricted activity and his pain would be likely to influence his mood and to cause him to feel depressed on occasions.
105 It is clear however that the plaintiff’s symptoms are such that he is able to manage his symptoms of pain without recourse to medical treatment or prescription medication and I am satisfied that it is likely that the plaintiff’s capacity to engage in most of the activities of daily life is maintained.
Conclusion
106 In undertaking the value judgment required of me in this instance I am charged with assessing the consequences to the plaintiff of the impairment to his spine arising from the 2003 accident, and determining where the facts of this case sit by comparison with other cases in the range of possible impairments or losses.[47]
[47]Humphries & Anor v Poljak [1992] 2 VR 129; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
107 When applying this approach to the findings which I have made in this application I am satisfied that the combined effect of the consequences to the plaintiff of his impairment the subject of this application are appropriately described as being significant or marked but not as being described as more than significant or marked and at least very considerable.
108 In these circumstances I am not satisfied that the plaintiff is entitled to the leave sought by him in this application.
109 I will hear the parties as to the order which should be made in this application and also upon the issue of costs.
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