Petrovski, Blagoja v TAC
[2009] VCC 1481
•10 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00223
| BLAGOJA PETROVSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 and 16 October 2009 |
| DATE OF JUDGMENT: | 10 November 2009 |
| CASE MAY BE CITED AS: | Petrovski, Blagoja v TAC |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1481 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – S.93 Transport Accident Act 1986 – Serious injury application – injury to cervical spine – prior injury to cervical spine – nature and extent of consequences of injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC with | Nowicki Carbone |
| Mr T J Ryan | ||
| For the Defendant | Mr M R Titshall QC with | Solicitor to the Transport |
| Ms M Britbart | Accident Commission | |
| HIS HONOUR: |
1 The plaintiff had suffered a range of injuries to his spine, and right knee over a number of years before 2003. In December 2003, he was involved in a transport accident in which he suffered injuries to his neck, chest, right shoulder and back.
2 On 2 November 2004, he was involved in a further transport accident, the subject of this application, when the vehicle in which he was travelling was hit from behind. He suffered further injuries to his cervical spine. He returned to work with his then employer, eventually to full-time hours, and performing normal duties. Subsequently, he commenced work with another cleaning company, Menzies International, and currently works almost full-time hours, although he claims the work is less demanding.
3 This is an application for leave to bring proceedings pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in the transport accident on 2 November 2004.
4 Mr Richards, on behalf of the plaintiff, identified the body function said to be lost or impaired as the cervical spine. The application is thus brought under sub-section (a) of the definition of “serious injury” contained in s.93(17) of the Act.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the cervical spine are at least “very considerable” and more than “significant” or “marked”.
6 I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the cervical spine.
7 The plaintiff and his treating general practitioner, Dr Gorgioski, were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and his wife, medical reports, radiological reports and documents related to the plaintiff’s prior WorkCover claims were tendered into evidence. I have read all the tendered material.
8 On behalf of the defendant, Mr Titshall outlined the position of his client in response to the application as follows:
•
The plaintiff had a range of prior injuries, particularly to his cervical spine, and those consequences had to be disentangled from the consequences of the subject transport accident.
•
The consequences of the subject transport accident did not meet the “very considerable” test required by the authorities.
• The credit of the plaintiff would be called into issue.
Relevant Background
9 The plaintiff was born in 1960, and is currently forty-nine years of age. He was born in Macedonia, worked on his family’s farm and then migrated to Australia in 1981 at age twenty-one. He has limited English, and gave his evidence in the course of the application through an interpreter. Upon arriving in Australia, he worked in various labouring jobs, including for Bostik, Goodyear Tyre Company, Ford, Visy Board, and Kevin Dennis Motors. He has no trade nor other qualification.
10 The plaintiff has a considerable history of injury to various parts of his body.
11 In approximately 1984 he suffered an injury to his low-back while working for Goodyear Tyre and Rubber Company. There was an aggravation of low-back problems in February 1986 when he was pushing a trolley. He was examined by Mr Peter Scott and Mr Richard Strangward, surgeons, in 1988 and 1989.[1] He was off work for a number of years. There was little to be found upon examination by these doctors, and the general conclusion was that his complaints were exaggerated or functional.
[1] See documents tendered as part of the plaintiff’s WorkCover files.
12 In May 1994, he suffered an injury to his right knee while working for Kevin Dennis Motors. At the time of the incident he had little time off, but had arthroscopic surgery in December 1994, and had two months away from work at that time. He resumed normal duties in March 1995. He made a claim for compensation for this injury, and saw a number of doctors. He continued to complain of ongoing pain and restriction in the knee. Mr Silley, surgeon, in September 1995 thought the prognosis for the knee was good.[2] However, to Dr Kenny, psychiatrist, in April 1996, the plaintiff complained of reactive depression. He said that he rarely socialized, had no hobbies, had to give up watching soccer, football and basketball and felt his life was not worth living.[3]
[2] Defendant’s Court Book (“DCB”) 45
[3] DCB 48
13 To Mr Rustomjee, surgeon, in 1998, he complained that his knee was continually sore and that it restricted him in a range of activities.[4] When he was examined by Mr Kevin King, orthopaedic surgeon, in relation to the subject transport accident, he said that his knee symptoms settled completely after the arthroscopy in December 1994. According to the plaintiff’s affidavit,[5] he said he did not recall having any significant ongoing problems with his knee after returning to full-time duties in March 1995.
[4] DCB 65
[5] Plaintiff’s Court Book (“PCB”) 8
14 On 10 December 1994, the plaintiff was involved in a motor vehicle accident, and suffered a soft tissue injury to his cervical spine, and a small tear to the supraspinatus tendon of his right shoulder. Again, in his affidavit, the plaintiff stated that he did not recall having any significant ongoing problems as a result of this transport accident.[6] A plain x-ray of his cervical spine showed no abnormality. He was treated by Dr Gorgioski, his general practitioner, and referred to Mr Rustomjee, surgeon. He complained of continuing pain in his neck through into 1996. Mr Rustomjee injected the right shoulder on several occasions, with good result. To Dr Lefkovits, in 1996,[7] the plaintiff complained of neck and right shoulder pain and a significant interference with his usual activities. To Mr Scott, in 1997, he complained of pain and stiffness in the shoulder and neck, but Mr Scott considered that the prospect was good for a recovery. To Mr Calvert, surgeon, in February 1998,[8] he complained of persisting neck and shoulder pain, and Mr Calvert considered that he was unfit for his pre-injury employment. Although it is difficult to ascertain from the material, it would appear the plaintiff lost little, if any time away from work as a result of this transport accident.
[6] PCB 8
[7] DCB 55
[8] DCB 82
15 In July 1995, the plaintiff developed bilateral inguinal hernias which were surgically repaired in October 1995. He was off work for a number of months, but apparently made a good recovery.
16 In October 1998, the plaintiff made a WorkCover claim for an injury suffered to his right shoulder and arm while working for Kevin Dennis Motors.[9] The injury was suffered when the wind blew shut the lid of a Dump master bin into which he was emptying rubbish. This episode appears relatively minor.
[9] Plaintiff’s WorkCover files – page 18
17 On 27 April 1999 in the course of his employment with Kevin Dennis Motors, he suffered an injury to his low-back. In cross-examination, he accepted that he was off work for two or three years. According to Mr Cullen, orthopaedic surgeon,[10] he suffered an acute disc prolapse. However, in 2001, when Mr Cullen was shown video film of the plaintiff working where his house was being constructed, he considered the plaintiff’s behaviour as entirely contradictory and inconsistent with the physical findings and complaints the plaintiff had made to him in March 2001.[11] In the course of this application, there was considerable cross-examination by Mr Titshall of the plaintiff in relation to the activities he performed during the course of the construction of his house over the period from 1999 to 2001. It appears the plaintiff did give assistance to the builders in the course of the construction, including carrying various items around the building site, the installation of garden beds, pots and plants, and various duties cleaning up the site. The plaintiff accepted that on occasions, he unloaded bags of cement, carried pieces of steel, picked up bricks and that during this time he was in receipt of payments of compensation. It was put by Mr Titshall that the activities which the plaintiff agreed to were inconsistent with the injuries he claimed to have suffered. There is little medical material available in respect of the injury suffered at this time, and no affidavit of the plaintiff as to the nature and extent of injury. It is difficult therefore to draw any significant inferences as to the plaintiff’s credibility.
[10] Plaintiff’s WorkCover files – page 21
[11] Plaintiff’s WorkCover files – page 30
18 In any event, in 2002, he commenced employment with a cleaning company, APV, and was required to undergo a physical examination. He passed the examination.
19 In December 2003, he was the driver of a motor vehicle which, travelling at approximately 100-kilometres an hour, collided with a tree which fell into his path. He suffered injury to his neck, chest, right shoulder and back. He said he did not have any time away from work[12]. A CT examination of his cervical spine taken 13 January 2004[13] showed small bulges at C5-6 and C6-7. The plaintiff was treated by Dr Gorgioski, and was referred to Mr Peter Wilde, orthopaedic surgeon, in May 2004. Mr Wilde noted that he had been prescribed Indocid tablets and that the plaintiff had not taken any time off work. The plaintiff complained to Mr Wilde of pain in the neck and difficulty looking from side to side. The neck pain was associated with headaches, but the symptoms did not extend into the shoulders nor arms. He considered the changes on the CT scan were longstanding and he referred the plaintiff for physiotherapy. Mr Wilde concluded:
“I feel an exercise based approach over the next few weeks would make a significant difference to his pain levels and hopefully over three months, get him to a comfortable pain-free status once again.”
[12] PCB 9
[13] PCB 24
20 The plaintiff accepted that he was treated by a physiotherapist over the later part of 2004, and was still treated up to a date one week before the subject transport accident. He claimed that the problems with his neck subsided, and before November 2004 he was not suffering any significant symptoms.
21 According to the report of Dr Gorgioski,[14] when he saw the plaintiff in January 2004 he described pain in the neck, radiating into his shoulders and arms. The pain was said to be 7 out of 10. In addition, the plaintiff complained of headaches.
[14] PCB 45
22 The plaintiff had an interest in soccer, and in 1997 commenced to referee soccer games. He continued to do so until early 2006. After the subject transport accident on 2 November 2004, he continued to referee soccer games. In 2005, the season commenced in April and finished in approximately September. He would referee two to three soccer games each weekend, depending upon the needs of the competition, and was paid $50 to $65 per game. He thought he had also refereed a number of games at the beginning of the 2006 season. By that time, however, he claimed that he had difficulty moving his neck, and had to retire from active refereeing.
23 According to his affidavit,[15] he stated that prior to the subject transport accident, he refereed on most weekends for a local soccer club, but afterwards had difficulty because of pain and associated headaches. I consider the explanation given by the plaintiff in his affidavit about his involvement in soccer refereeing to be inconsistent with what unfolded in cross-examination.
[15] PCB 12
24 Before the subject transport accident, he claimed that he was an active person and performed the majority of the chores and maintenance around his home, including mowing the lawn, maintaining a vegetable garden, and various maintenance duties.[16] He assisted his wife with shopping, carrying the heavier items, was able to drive in an unrestricted manner. In his employment at APV, he was able to undertake full-time unrestricted duties. That work included cleaning in a factory environment which he claimed was demanding.
[16] PCB 11
The Transport Accident and its Consequences
25 On 2 November 2004, the plaintiff was driving his motor vehicle when he stopped at a roundabout in South Morang. He was struck from behind by another vehicle and then struck a second time. He claims to have suffered injury to his neck, and referred pain into his shoulder and right arm. On the day of the accident, he was taken to the Northern Hospital where he stated an x-ray was taken and he was sent home. The plaintiff again attended Dr Gorgioski on 3 November 2004 complaining of headache, neck pain and dizziness[17]. The x-ray undertaken at the Northern Hospital showed no significant abnormality in the cervical spine.[18] Dr Gorgioski arranged a CT scan[19] which showed:
“There is some minimal diffuse disc herniation noted at C5-6 and also C6-7 levels slightly impressing the dural sac at these levels. There is slight narrowing of the left neural exit foramen at C5-6. There are some minor lipping changes but no significant narrowing of the dural sac.”
[17] PCB 45. In his affidavit, he stated he suffered pain in his neck,, right shoulder and right arm – PCB 9
[18] PCB 25
[19] PCB 26
26 Dr Gorgioski referred the plaintiff for physiotherapy. The plaintiff stated that physiotherapy ceased towards the end of 2006 as the Transport Accident Commission ceased payment.
27 Dr Gorgioski again sent the plaintiff to Mr Wilde who referred the plaintiff for an MRI scan of his cervical spine.[20] This showed a broad-based disc bulge at C5-6 with bilateral neural foraminal stenosis with some minimal flattening of the ventral cord. Unlike the previous examination, C6-7 was said to be “clear”. The investigation concluded multi-level cervical spondylosis with no significant cord compression. Mr Wilde noted[21] that the disc bulge at C5-6 caused bilateral foraminal stenosis, affecting the left side where the C6 nerve root was compromised. He recommended the plaintiff use a soft collar while at home. He considered that if the pain became more significant, there was the prospect of a C5-6 cervical discectomy. However, he thought there would be gradual improvement.
[20] PCB 27
[21] PCB 32
28 Mr Wilde again saw the plaintiff in November 2005[22] with complaints of increasing pain from the neck and into the right arm. There were complaints of numbness in the whole right arm, especially the thumb, middle and index fingers, and he considered the plaintiff was suffering carpal tunnel syndrome. A nerve conduction study was undertaken at the Austin Hospital which showed mild to moderate carpal tunnel syndrome.[23] The plaintiff was again referred to Mr Wilde by Dr Gorgioski in 2008.[24] Mr Wilde noted that the MRI scan of May 2008 showed very mild spondylitic changes at C5-6 with very slight neural foraminal stenosis. He could not see significant neural compression. Mr Wilde concluded that surgery would be of no benefit to the plaintiff. He recommended conservative treatment and noted the plaintiff was working full-time as a cleaner with Menzies International.
[22] PCB 33
[23] PCB 34
[24] DCB 168
29 Dr Gorgioski referred the plaintiff to Mr D’Urso, neurosurgeon, in February 2006.[25] He considered the plaintiff was symptomatic from a combination of cervical spondylosis, which may have been affected by the transport accident of November 2004, and also from carpal tunnel syndrome. He recommended a decompression operation. He did not feel surgical intervention in relation to the cervical spine was indicated.
[25] PCB 43
30 Dr Gorgioski further referred the plaintiff to Dr Helen Sutcliffe, occupational physician, who examined the plaintiff in 2008. She obtained a history of the transport accident of November 2004 as a result of which the plaintiff claimed to be suffering neck pain, persisting headaches and some shoulder girdle pain. He further complained of increasing pain after activity, and difficulty with his employment. She arranged a further MRI scan undertaken in May 2008[26] which showed mild spondylitic changes, most severe at C5-6 with neural foraminal narrowing at that level. According to Dr Sutcliffe, those radiological findings were consistent with the clinical picture and she concluded that the plaintiff had suffered an aggravation to cervical spondylosis in the 2004 transport accident.[27]
[26] PCB 28
[27] PCB 48c
31 The plaintiff has continued to consult Dr Gorgioski regularly and takes daily pain-relieving medication, including Panadeine Forte (upon prescription) and Panamax. He takes Mogadon sleeping tablets. He claimed that he is significantly restricted in domestic and recreational activities. He no longer does the majority of work around the house, including the garden. He is unable to assist his wife with the heavier aspects of shopping and his activities as a referee ceased in 2006 because of difficulty turning his neck, and associated headaches. He occasionally goes to watch a local soccer team play. He finds driving difficult and becomes anxious and fearful in cars. He claims problems sleeping due to the pain in his neck and his relationship with his family has been affected.
32 In terms of his employment, the plaintiff was off work for about two weeks after the subject transport accident, and then returned on part-time modified duties. After a short period, his duties returned to those of full-time cleaning. For a period in March 2006, the plaintiff was certified as being fit for five hours’ modified duties a day.
33 The plaintiff was made redundant in November 2006 when he was working full hours and in unrestricted duties. He agreed that he was made redundant because there was not sufficient work for the cleaners employed at the time.[28] He accepted a redundancy package. Within a month, the plaintiff had obtained alternative employment with Menzies International, doing a range of cleaning jobs. At the present time, the plaintiff is working approximately full- time hours, although slightly less than with his former employment.[29] The plaintiff claimed that his work at Menzies was easier and lighter than at APV.
[28] Transcript (“T”) 55
[29] T 56-57
34 At the present time he claims that he is struggling to carry out all of his duties, and work the hours required.[30] He is uncertain about his future. He owns a house at South Morang but with a substantial mortgage, and both he and his wife work to maintain the payments.
[30] PCB 14, T 13-14
35 In cross-examination, he conceded that he still drives a car to work each day, approximately twenty minutes to and from work. On occasions, he drives twenty five to thirty minutes to a soccer game.
36 He accepted that he goes fishing from time to time on inland lakes, and occasionally travels significant distances, and camps overnight in a caravan or hut. Occasionally he sleeps in the back of a kombi van on a foam mattress. He was taken at length to the various accidents and incidents before the subject transport accident, and it was suggested to him that many of the complaints he made, particularly in relation to his cervical pain, and his reaction to injury, were the same or very similar to the complaints he has made since the subject transport accident.
37 He acknowledged that he was treated with physiotherapy regularly through the months of July through to October 2004. The last occasion was one week prior to the subject transport accident. He stated that his neck problems became more substantial after November 2004.
Medical Evidence
38 I have referred in part to the opinions of the various treating practitioners.
39 In his report of 20 November 2007,[31] Dr Gorgioski considered the plaintiff had suffered a whiplash injury to his neck with a disc bulge at C5-6, and disc herniation at C6-7. He thought that the plaintiff’s condition had been caused by the transport accidents of both December 2003, and November 2004, and attributed responsibility equally. In a report to the plaintiff’s practitioners of 17 September 2009,[32] Dr Gorgioski significantly changed his opinion, and stated that the plaintiff had made a full recovery from the transport accident of December 2003. He attributed all of the plaintiff’s problems to the subject transport accident. Neither in his reports, nor in the course of his evidence, was Dr Gorgioski able to give any satisfactory explanation for this change of opinion. He considered the plaintiff to be permanently unfit for his pre-injury work, and that within the next twelve months he would be unable to maintain his current hours. In cross-examination, he said that this was because of the plaintiff’s age, and the ongoing deterioration in his cervical spine. It was put to him that on occasions in the past, specialists who had treated the plaintiff had recommended the plaintiff undertake lighter duties. He said that the plaintiff had made a good recovery from those past incidents. Dr Gorgioski had certified the plaintiff as fit only for restricted duties, and from time to time as unfit for any work over the period from 1999 to 2001. The doctor’s clinical notes over the period 1997 to 1999 referred to ongoing complaints in the plaintiff’s neck and right shoulder. However, in 2003 there were no complaints of pain to the cervical spine. After January 2004, there was little if any complaint of neck and shoulder problems.
[31] PCB 45-46
[32] PCB 48
40 The plaintiff was examined by Mr Kevin King, orthopaedic surgeon, in July 2008.[33] He obtained a history[34] that the plaintiff thought all of his current problems were related to the transport accident of November 2004. Therefore, Mr King concluded that the plaintiff had made a good recovery from his various previous injuries, and was working without difficulty. From the description obtained, Mr King concluded that the subject transport accident was a major three car collision involving violent jerking strains to the head, neck and shoulder. He said that the plaintiff had been chronically disabled to a moderately severe degree by neck pain and headache from that time. He also noted right brachial neuralgia. He considered that the plaintiff had aggravated underlying asymptomatic degenerative changes in his cervical discs and associated ligamentous structures in the subject transport accident. This had produced for the first time, significant right-sided brachial neuralgia with nerve root irritation. The earlier transport accident would have predisposed the plaintiff to injury, said Mr King, but concluded that nine-tenths of the current impairment were related to the November incident. He thought the plaintiff was well motivated to work.
[33] PCB 49-58
[34] PCB 53
41 The plaintiff was examined by Mr Chris Haw, orthopaedic surgeon, in September 2009.[35] Mr Haw’s opinion is of limited assistance, as he received no history of the transport accident of 2003, and while there is reference to a past history “as documented to the solicitor”, there appears only to be mention of a lower back injury of April 1999. Mr Haw concluded that the plaintiff had suffered significant pain in his neck, radiating to the right arm as a result of the transport accident of November 2004. This, he thought, was probably as a result of disc herniation at C6-7 and there may have been some exacerbation of the pre-existing carpal tunnel syndrome. He said the plaintiff was suffering significant stress and anxiety with a degree of depression and irritability. He did not believe the past history was relevant to his current disability as the plaintiff had “fully recovered from the majority of those accidents and only one resulted in a significant period of time off work which was an injury to his lower back when working for Kevin Dennis Motors”.
[35] PCB 58a-c
42 On behalf of the defendant, the plaintiff was examined by Professor Stephen Davis, neurologist in June 2009.[36] Professor Davis received a far more comprehensive history of the plaintiff’s various incidents and injuries.[37] However, in relation to the transport accident of December 2003, he was provided with a report of Dr Gorgioski that the plaintiff had recovered from the injury sustained in that transport accident. Upon reviewing the MRI scan of May 2008, he thought there were mild spondylitic changes particularly at C5-6 with narrowing of the left C5-6 neural foramen. He said there were no objective features of radiculopathy. He thought the subject transport accident involved musculoligamentous injuries, exacerbating pre-existing cervical spondylosis. He considered that from a neurological perspective, the plaintiff’s prognosis was good.
[36] DCB 86-90
[37] DCB 87-8
43 The plaintiff was examined by Dr David Weissman, psychiatrist, on behalf of the defendant in July 2009.[38] He thought the plaintiff was suffering a mild to moderate adjustment disorder with depressed and anxious mood. The prognosis from a psychiatric perspective was reasonably good and there was no incapacity for work.
[38] DCB 91-101
44 Finally, the plaintiff was examined by Mr Brendan Dooley, orthopaedic surgeon, on behalf of the defendant in August 2009.[39] He obtained comprehensive documentation of the plaintiff’s various prior injuries, and reports of various practitioners who examined the plaintiff over the years.[40] In the history obtained, he was told by the plaintiff that after the December 2003 transport accident, the plaintiff’s neck pain resolved within a few weeks and that he had no physiotherapy treatment. This was clearly not the case. In the transport accident of November 2004, the plaintiff told Mr Dooley that he had sustained a whiplash injury to his neck and a minor injury to his right shoulder. The plaintiff further stated that the symptoms after that accident were far more severe. Treatment had consisted mainly of physiotherapy and the plaintiff had suffered stiffness to the neck, and pain radiating into both shoulders, and particularly through the right arm.
[39] DCB 102-108
[40] DCB 102
45 Mr Dooley concluded that as a result of the first transport accident, the plaintiff suffered a minor soft tissue injury from which he quickly recovered. In the subject transport accident, the plaintiff again suffered a soft tissue injury to the cervical spine with right brachial neuralgia involving probably the sixth cervical nerve root, with aggravation of the degenerative changes present at C5-6. He further thought the plaintiff was suffering from mild right carpal tunnel syndrome. Mr Dooley did not appear to make an assessment of the plaintiff’s work incapacity, but noted that he was working as a cleaner, thirty-eight hours per week, that he was fully mobile and able to walk for thirty minutes at a time and that his personal relationships had not been affected.
Conclusions as to the Medical Evidence
46 Given the various incidents, transport accidents and consequent injuries that the plaintiff was suffering up until November 2004, it is difficult to reach accurate and precise conclusions as to the medical evidence, without hearing from the various doctors involved, and having the benefit of their evidence challenged in cross-examination. Doing the best I can given only Dr Gorgioski was called to give evidence and be cross-examined, I have reached the following conclusions.
47 The plaintiff suffered various injuries, including to his lower back, right knee, neck and right shoulder in various incidents from 1984 through until 1999. All of those incidents required treatment by various practitioners, the prescription of medication, physiotherapy on occasions and, particularly over the period from 1999 to 2001, periods away from work.
48 Despite, however, the predictions of some practitioners, the plaintiff appears to have made a reasonable recovery from all of these injuries to the point where, from 2002 he was able to work as a cleaner on a full-time basis undertaking a range of duties, including reasonably heavy duties.
49 In the transport accident of December 2003, I accept that the plaintiff suffered a soft tissue injury to his cervical spine which required treatment not only by his general practitioner, but referral for specialist opinion to Mr Wilde. Apart from some initial leave around Christmas 2003, the plaintiff had little time off work in respect of this injury. I accept the opinion of Mr Wilde contained in his letter to the general practitioner of May 2004[41] that the plaintiff had ongoing pain in the neck of at least a moderate level up until May 2004, although at that point, Mr Wilde was hopeful that the plaintiff would fully recover. He had little treatment from his general practitioner in 2004, but I note he received regular physiotherapy in the latter part of that year, including treatment a week or so before the subject transport accident. I do not accept the opinions of Mr King, and Mr Haw, who obtained a history that the plaintiff recovered fully shortly after the December 2003 transport accident. They simply did not receive a comprehensive history.
[41] PCB 30-31
50 I was unimpressed with the evidence of the plaintiff’s treating general practitioner, Dr Gorgioski. I accept the complaints set forth in his clinical records, but do not accept his opinion that the plaintiff had recovered fully from the first transport accident and that his current presentation was attributable wholly to the subject transport accident. That opinion is in complete contrast to the earlier opinion when he attributed responsibility equally to the two transport accidents. Generally, I prefer the opinions of Mr Wilde and the defendant’s consultants, Professor Davis and Mr Dooley. The latter doctors obtained a comprehensive history of the plaintiff’s various injuries.
51 In the second transport accident, I am satisfied the plaintiff suffered a soft tissue injury to his cervical spine which caused an aggravation of the underlying condition, and further symptoms in that area, with some referred pain to his right shoulder. I prefer the opinions of Mr Wilde and Professor Davis that there was no neurological deficit nor radiculopathy.
52 I am unable to conclude that the various CT and MRI scans indicate any significant damage to or aggravation of the condition in the plaintiff’s cervical discs and reject the opinion of Dr Gorgioski that the second transport accident caused a disc herniation.
The Plaintiff’s Credibility
53 Mr Titshall submitted I ought to have reservations about the plaintiff’s credibility. He said that the plaintiff was able to engage in a range of activities relating to the construction of his home over the years 1999 to 2001, inconsistent with the fact that he was unable to work, and in receipt of worker’s compensation payments. However, in my view, the evidence is not sufficient to enable such a conclusion to be drawn. I am unable to say the extent to which the plaintiff was restricted in his work because of his lower back injury over that period, and the evidence about the activities that he carried out is sparse.
54 I was unimpressed with the plaintiff’s evidence, however, in relation to his activities as a soccer referee. There was no mention in his affidavit about the extent of his involvement in soccer after the subject transport accident, save that he said he was unable to continue because of neck pain. However, in cross-examination, he admitted that he acted as a referee throughout the 2005 year, and possibly in the early 2006 year umpiring sometimes three games a weekend.
55 Further, I found that throughout particularly his cross-examination, the plaintiff did not answer questions directly, nor make a reasonable attempt to give an honest response. Allowance must be made for the fact that he gave his evidence through an interpreter, and many of the questions that he was asked required him to recall back many years. Nonetheless, he repeatedly said that he could not answer questions because he could not remember matters put to him, including whether he had been off work at all over the years 1999 to 2001. I formed the view that the plaintiff was not making an honest attempt to answer questions in a truthful manner.
56 Further, the plaintiff did not, in his affidavit, give a comprehensive history of the extent to which he had been affected by injury in the transport accident of December 2003. It was only under cross-examination that he disclosed that he had ongoing physiotherapy. It is clear that he was suffering pain into the neck, at least until May 2004, and had considerable treatment thereafter. I do not accept the plaintiff’s response that he simply could not remember.
57 In these circumstances, I am of the view the plaintiff’s credibility has been affected, and I have reservations about accepting fully his complaints of pain and restriction.
Submissions of the Defendant
58 Mr Titshall submitted that when the plaintiff’s condition was looked at as at the date the application was heard, the consequences could not be said to be “very considerable”. He said the plaintiff was able to work thirty-eight hours per week in a cleaning job, and had done so since December 2006 without any time off because of his neck pain. Mr Titshall submitted there was no difference between his capacity for employment before and after the subject transport accident.
59 In terms of the plaintiff’s pain and suffering, Mr Titshall noted that the plaintiff was able to drive with very little restriction, able to enjoy a range of recreational activities, including going fishing to various parts of the state, and was able to referee soccer games for the whole of the 2005 season, and then for a period in 2006.
60 He submitted that the plaintiff at the present time had minimal treatment and the picture over the 2004 period, and before the subject transport accident, including referral to specialists and physiotherapy, was essentially no different from the years afterwards.
61 He submitted the plaintiff was prone to exaggeration as had been evidenced by the various medical reports over the years.
62 The final report of Mr Wilde of June 2008[42] indicated that in fact there was very little pathology to be shown upon MRI scans other than some mild spondylosis and the need for nothing other than conservative treatment.
[42] DCB 168
Submissions of the Plaintiff
63 Mr Richards submitted that I ought to accept the opinion of Mr Dooley, who examined the plaintiff on behalf of the defendant recently in August 2009. It was his view[43] that the plaintiff had suffered a soft tissue injury to the cervical spine in the subject transport accident with right brachial neuralgia involving probably the sixth cervical nerve root. This, according to Mr Dooley, represented an aggravation of degenerative changes present at the C5-6 level at the time.
[43] DCB 106
64 Mr Richards noted there was no complaint to the general practitioner of pain in the cervical spine during the 2004 year and the prognosis expressed by Mr Wilde in May 2004 was for a good recovery. The only ongoing treatment was a course of physiotherapy.
65 Mr Richards submitted that the various radiological reports supported a disc injury in the subject transport accident.
66 He referred to R J Gilbertsons Pty Ltd v Skorsis,[44] where the Court of Appeal, in the context of a workplace injury said that an injury could be deemed “serious” if it was a cause of a serious long-term impairment or loss of a body function”. Thus, said Mr Richards, the plaintiff needed to prove only that, firstly, at the present time the plaintiff did have serious consequences, and that the subject 2004 transport accident was a cause of them.
[44] (2000) 12 VR 386, at 394
67 Mr Richards submitted that the plaintiff was a resilient person, prepared to keep fit by undertaking the refereeing, and stopped only when his neck problems would not allow it. The same applied to his work where he was continuing to work under difficulty to meet his mortgage repayments.
68 He submitted I should accept the plaintiff was in constant pain requiring significant pain-relieving medication. He also said that I could take into account the findings of Dr Weissman that the plaintiff was suffering from a resultant adjustment disorder and that that was a measure of the significance of the plaintiff’s pain, as per Richards v Wylie.[45]
[45] [2000] VSCA 50
Conclusions
69 I have found this a difficult application given that, aside from Dr Gorgioski, I have not had the benefit of the evidence of medical practitioners, particularly Mr Wilde, to comment upon the nature and extent of the plaintiff’s current disabilities as a result of his neck injury, and the extent to which those disabilities are causatively related to the subject transport accident.
70 I am satisfied the plaintiff suffered a soft tissue injury to his cervical spine in the transport accident of December 2003 and that he continued to suffer pain and restriction until at least the middle of 2004. I accept that towards the latter part of 2004 the symptoms had been relieved, particularly by physiotherapy, and the plaintiff was making few complaints to his general practitioner. I note that throughout 2004, the plaintiff worked in full-time employment with little time off.
71 In the subject transport accident, the plaintiff further aggravated the underlying degenerative disease in his neck which was evident by the various CT and MRI scans taken over the period from 2003 through to the present time.
72 I accept the plaintiff has pain in his neck radiating particularly to the right shoulder which requires pain-relieving medication.
73 In my view, there is very little difference in the employment the plaintiff is presently undertaking than that which he undertook in 2004 before the subject transport accident. He works essentially a full working week in a range of cleaning duties and although he claims that the nature of those duties are lighter, I am not satisfied there is any significant difference in the type and nature of his employment at the present time compared to the year 2004.
74 Further, I note the plaintiff is able to undertake a range of activities, particularly including driving to and from work which he does each day, and some recreational activities, particularly in the nature of fishing. I note in the 2005 and early 2006 years he was able to act as a soccer referee, sometimes umpiring three games each weekend.
75 As in many applications of this nature, I am reliant upon the evidence of the plaintiff that he struggles to complete his work duties and in the foreseeable future may have to reduce his hours as he is only just coping. Further, I am reliant upon his evidence that his pain is constant and unrelenting, with exacerbations, depending upon the activities in which he is involved. For the reasons stated, I have significant reservations about the credibility of the plaintiff and find I am unable to rely upon this evidence.
76 The report of Mr Wilde of 2008 is, in my view, significant.[46] His reference to the changes on the MRI scan indicate they are not significant. While he finds restriction of movement on physical examination, he could not detect any neurological deficit, and noted the plaintiff was working full-time. There is no recommendation that the plaintiff reduce his hours, undertake any other form of treatment, nor anything to indicate any significant problem in terms of pain and restriction.
[46] DCB 168
77 I accept the submissions of Mr Richards that the plaintiff need only show that the subject injury was a cause of the current consequences. However, in my view, the consequences to the plaintiff at the present time do not achieve the “very considerable” level as required by the authorities. The plaintiff is able to work full-time in a manual job. I do not accept his evidence that he struggles to maintain that employment. While I accept that there is some restriction in his recreational and domestic activities, I am of the view that that restriction is not substantial.
78 In my view, the plaintiff’s application fails. This application first came on for hearing on the 14 October 2009 and was unable to proceed on that day as counsel then retained for the defendant was ill and unable to attend Court. I made an order on that day that the defendant pay the plaintiff’s costs thrown away. The defendant having succeeded on the application, is thus entitled to costs of the 15 and 16 October 2009. I have read the submissions of both junior counsel as to the ultimate order as to costs and consider the appropriate order that I vacate the costs order made the 14 October 2009 and make no order as to costs against the plaintiff in respect of the 15 and 16 October 2009. I shall make orders to this effect.
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