Phromphian v Transport Accident Commission
[2023] VCC 665
•3 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-02787
| NATTAPHON PHROMPHIAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2023 | |
DATE OF JUDGMENT: | 3 May 2023 | |
CASE MAY BE CITED AS: | Phromphian v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 665 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the neck
Legislation Cited: Transport Accident Act 1986 (Vic), s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries and Anor v Poljak [1992] 2 VR 129; Thapa v Transport Accident Commission [2021] VSCA 239
Judgment: Leave granted to the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Ms P Prossor | National Compensation Lawyers |
| For the Defendant | Mr A J McG Moulds KC with Ms K Karadimas | Hall & Wilcox |
HER HONOUR:
Introduction
1Mr Nattaphon Phromphian, the plaintiff, is a fifty-year-old automotive service technician.
2On 13 June 2019, the plaintiff was riding his motorcycle through the intersection of Malvern Road and Kooyong Road, Armadale, when a car turned in front of him and the plaintiff collided with that vehicle at approximately 60 kilometres per hour (“the transport accident”). He seeks leave pursuant to s93 of the Transport Accident Act 1986 (“the Act”) to commence a proceeding at common law claiming damages for the injuries sustained in the transport accident. The plaintiff claims to have suffered a “serious” physical injury to his neck.[1]
[1]The case was opened on the basis of both right shoulder and neck impairments. The plaintiff abandoned the application is respect of the right shoulder during closing submissions. The defendant accepted that there was no issue of disentanglement of right shoulder impairment consequences as the medical evidence supported that the relevant injury was to the cervical spine and right shoulder symptoms were caused by the cervical spine injury.
3The relevant legal principles are well known and were not in dispute. The defendant accepted that the plaintiff suffered an injury to his neck in the transport accident but contended that the impairment consequences did not meet the threshold.
4For the reasons below, the plaintiff is granted leave to initiate a common law proceeding claiming damages for the injuries sustained in the transport accident.
5Before setting out the relevant background, it is convenient to set out my assessment of the plaintiff’s evidence.
The Plaintiff as a witness
6Mr Moulds KC, who appeared with Ms Karadimas for the defendant, did not suggest that this was a case in which the credit or reliability of the plaintiff played any significant role save for the issue as to the reason for the plaintiff’s cessation of rideshare driving.
7My overall assessment of the plaintiff as a witness, was that he was generally candid. He readily accepted many matters put to him in cross-examination and made numerous concessions. His account of his symptoms in his affidavits and to examining doctors is quite consistent. No medical practitioner has suggested that the plaintiff has overstated or exaggerated his symptoms and restrictions.
8Save for the issue as to the reason he stopped rideshare driving in April 2020, I accept the plaintiff’s account of his symptoms and limitations.
Background
9The plaintiff was born in Thailand. He completed secondary school and thereafter, obtained a degree in Mechanical Engineering from Khon Kaen University in Thailand.
Work prior to the transport accident
10The plaintiff worked for several major vehicle manufacturers in Thailand, including Volvo Truck and Bus, BMW and Daimler Mercedes. His roles included field engineer, specialist engineer and workshop organisational consultant.
11The plaintiff migrated to Australia in 2009. After spending approximately eighteen months learning English, he obtained work as a service technician for Volvo Truck and Bus in Adelaide in 2011. In about 2012, the plaintiff moved to Melbourne and began working at BMW South Yarra as a service technician.
12Between 2016 and 2017, the plaintiff lived in Alaska for about a year to be near his daughter. Whilst there, he worked for BMW as a diagnostic technician.
13Upon his return to Australia in 2017, the plaintiff resumed employment as a service technician with BMW, this time at their Doncaster premises. He has continued to be employed full time by BMW since then but has worked at several locations. Since November 2022, the plaintiff has worked at BMW Kings Way, South Melbourne. His job remains the same, but it has been re-styled “senior technician”.[2]
[2] Transcript 12
14In 2017, the plaintiff began performing additional work as a rideshare driver. He usually did this work during evenings and at weekends. He averaged approximately 30 hours a week of this work, on top of his full-time role at BMW. His evidence was that he would prioritise performing overtime with BMW, but if there was no overtime available, he would undertake rideshare work. I accept that evidence.
15The tendered documents show that in the financial year ending 30 June 2018, the plaintiff drove 10,351 kilometres for Uber.[3] The plaintiff’s gross income from that work was $38,231. In the financial year prior to the transport accident (the year ending 30 June 2019), he drove 7,800 kilometres for Uber.[4] His gross income from that work was $25,002.
[3] Defendant’s Court Book (“DCB”) 61
[4]DCB 62
16The plaintiff’s wife, adult son and mother live in Thailand. The plaintiff supports them financially. I accept his evidence that this was the primary motivation for him working so extensively prior to the transport accident. I also accept his evidence that he remains motivated to work as much as he can in order to support his family in Thailand.
Treatment
17After the transport accident, the plaintiff was taken by ambulance to The Alfred hospital where he was admitted for three days. CT and MRI scans were undertaken of his cervical spine. He was diagnosed as suffering from central cord syndrome. He was discharged in a cervical collar which he was advised to wear for six weeks. He was followed up in the Orthopaedic Outpatient Clinic on two further occasions.
18Since then, the plaintiff has had limited conservative treatment for his injuries. He has attended his general practitioner (“GP”) infrequently for his neck condition.
19The plaintiff attended the Metro Pain Clinic on one occasion but declined the diagnostic tests which were recommended. The plaintiff said that he did so as he was fearful of the anaesthetic which would be necessary to perform these tests. I accept his evidence on that issue.
20The plaintiff recently commenced physiotherapy. Further physiotherapy has just been approved and the plaintiff intends to have it.
21The plaintiff occasionally takes over-the-counter analgesia for his neck pain. I accept his evidence that he tries to avoid taking medication as he is concerned about the side effects.
22Apart from physiotherapy, no further treatment is planned.
Work since the transport accident
23The plaintiff was unable to work in any capacity for several weeks after the transport accident.
24On 21 June 2019, the plaintiff first attended his GP, Dr Lim, following the transport accident. The plaintiff told Dr Lim that he had been given a certificate for four weeks off work, but the Transport Accident Commission had advised that he would not be eligible for loss of earnings payments as he did not have a local license. He told Dr Lim that he was going to speak to BMW “next week” about returning to work on light duties whilst wearing a collar. The plaintiff reported that he had been taking a small dose of Targin, mainly at night. Dr Lim noted that the plaintiff was to “wean down as pain improves”.
25On 25 June 2019, the plaintiff’s GP certified him fit to resume work performing light duties. He did so. He has continued to work full time at BMW ever since.
26On 9 June 2022, the plaintiff fell at work and suffered an injury to his low back and right shoulder. He was certified as fit to work in suitable employment with no lifting or pulling more than 5 kilograms for the period 20 June 2022 to 17 August 2022.
27On 17 February 2023, Dr Ingram, the plaintiff’s current GP, certified the plaintiff fit to perform full-time modified duties for three months. This modification appears to be because of the transport accident-related limitations due to the plaintiff’s ongoing neck injury.
28There were long periods after August 2019 when the plaintiff was not provided with certificates of capacity limiting his duties at BMW. The plaintiff’s evidence was that notwithstanding the absence of certification, he has not returned to performing his full pre-injury duties. In particular, he has struggled to perform the heavier aspects of his work and tasks involving prolonged looking up. That account is supported by the affidavit of Joseph Frawley (the plaintiff’s manager at BMW South Yarra) sworn on 23 February 2023. I accept the plaintiff’s evidence on this issue.
The medical evidence
29There was little controversy in the medical evidence. I will briefly summarise the pertinent aspects of the reports which were tendered.
Treating doctors
The Alfred hospital
30Dr David MacDonald, medico-legal consultant, provided a report dated 28 August 2021 compiled from the plaintiff’s records at Alfred Health.[5]
[5]Plaintiff’s Court Book (“PCB”) 53
31Upon attendance at The Alfred hospital on the day of the transport accident, the plaintiff complained of thoracic back pain, tingling in both thumbs and hands, right shoulder pain and a broken tooth.
32An MRI scan of the plaintiff’s cervical spine performed on 14 June 2019 was reported as revealing:
“… pre vertebral oedema with likely partial thickness tears of the anterior longitudinal ligament at the level of L4-5 [scil C4-5] and C5-6. There was a C4‑5 right paracentral focal disc protrusion identing the hemicord. Superior to this there was a focal sign within the cord. … .”
33Conservative management was recommended. The plaintiff was advised to wear a neck collar for six weeks. The plaintiff was discharged from The Alfred hospital on 15 June 2019.
34When reviewed in the Orthopaedic Outpatient Clinic on 29 July 2019, the plaintiff said that his bilateral upper limb paraesthesia had completely resolved. He had worn the collar for six weeks and had not had much pain when he took it off to shave, shower and sleep. Neurological examination showed no abnormality. At this review, the plaintiff’s right shoulder pain was more prominent. He was certified fit to perform suitable employment.
35The plaintiff was reviewed again in the Orthopaedic Outpatient Clinic on 4 October 2019. On this occasion, his main issue was right shoulder stiffness.
Dr David Lim
36The plaintiff relied upon a report from Dr David Lim, GP, dated 26 June 2020.[6] This report set out the plaintiff’s attendances upon Dr Lim following the transport accident.
[6]PCB 51
Dr Bruce Ingram
37The plaintiff first saw Dr Bruce Ingram, GP, on 14 October 2021. Two reports were tendered from Dr Ingram, dated 25 November 2022 and 4 March 2023.[7] He noted the difficulty the plaintiff had getting physiotherapy treatment due to COVID-19 restrictions.
[7]PCB 61 and 62
38In his first report, Dr Ingram noted that the plaintiff had a limited range of movement in his cervical spine and was unable to lift more than 5 kilograms with his right arm. He noted that the plaintiff occasionally experienced tingling in his right hand. He stated that the recent MRI scan revealed “C5-6 generalised disk bulge with superimposed right posterolateral disk protrusion with compression of the right C6 nerve root”. He stated that the plaintiff was awaiting a review at the Metro Pain Clinic. Dr Ingram opined that the plaintiff suffered significant depression, stress and anxiety because of his injuries.
39In his second report, Dr Ingram stated the plaintiff was continuing to experience ongoing neck pain, limitation in the use of his right upper limb and intermittent tingling in his right hand. He reported that the plaintiff had declined the treatment offered by Metro Pain Clinic. He repeated his opinion that the plaintiff’s injuries caused him to become anxious and depressed about his future.
Dr Vishal Bhasin
40The plaintiff tendered a report of Dr Vishal Bhasin, pain specialist, dated 15 February 2023.[8] Dr Bhasin saw the plaintiff on one occasion, 5 December 2022. Dr Bhasin noted that the plaintiff presented with ongoing right neck pain at a grading of 6 to 7 out of 10, made worse by work activities and holding his neck at 45 degrees flexion. He was not taking any regular pain medications.
[8]PCB 78
41On examination, Dr Bhasin found focal right paravertebral neck tenderness with some associated mild central tenderness. He opined that the plaintiff most likely suffered from mixed disc and facet pain of the neck. He advised the plaintiff to undergo medial branch blocks as a means of determining whether the pain was primarily facet pain. The plaintiff advised Dr Bhasin that he was not willing to undergo medial branch blocks.
Xavier Evans
42The plaintiff tendered a report from Xavier Evans, physiotherapist, dated 8 February 2023.[9] Mr Evans saw the plaintiff on two occasions in 2023. On examination, he noted a reduced range of motion in the plaintiff’s cervical and thoracic spine. He noted that the plaintiff was restricted in his ability to drive for prolonged periods, push, pull and lift. He recommended a six-week treatment program.
[9]PCB 63
Medico-legal doctors
43The plaintiff tendered medico-legal reports of Professor Richard Bittar, Mr Paul D’Urso and Mr Gary Speck.
44The defendant tendered medico-legal reports of Dr David Frielich, Dr Robyn Horsley and Dr Timothy Entwisle.
Professor Richard Bittar
45Professor Richard Bittar, neurosurgeon, examined the plaintiff on 2 December 2021. He noted the plaintiff complained of constant neck pain which varied in character between sharp, dull, throbbing and stabbing. It had an average severity of 8 out of 10. The pain was exacerbated by “repetitive or sudden neck movements, maintaining his neck in a fixed position for prolonged periods, repetitive arm movements, using his arms above shoulder height, neck extension or rotation, lifting more than 20-30kg, using a computer for more than an hour, and driving for more than around two hours”. The plaintiff reported experiencing intermittent numbness, and pins and needles in his right thumb and index finger and headaches around twice a week.
46Professor Bittar opined that the plaintiff suffered a cervical spine discoligamentous injury; central cord syndrome with resolution of sensory symptoms; persistent neck pain and cervicogenic headaches, most likely arising from the facet joints, and intermittent right-hand sensory disturbance, most likely due to right C6 nerve root compression caused by the transport accident.
47Professor Bittar opined that the plaintiff was permanently incapacitated for his full pre-injury duties as a diagnostic technician. Further, he was unfit to resume Uber driving as that would aggravate his symptoms.[10]
[10] PCB 138
Mr Paul D’Urso
48The plaintiff tendered a report dated 23 November 2022 from Mr Paul D’Urso, neurosurgeon. Mr D’Urso recorded the following account from the plaintiff as to his current capacity:
“Nattaphon works fulltime as a mechanic. He can perform shopping, cooking, cleaning and washing. He does not perform gardening. Prior to his injuries, Nattaphon stated he was able to drive without restriction. He was able to work part-time as an Uber driver and he can no longer perform this activity because of ongoing disability and incapacity. Nattaphon stated that prior to the accident he was able to go swimming, play tennis and play snooker. He states he can no longer perform these activities as he once did because of his ongoing disability and incapacity.”
49Mr D’Urso noted that the plaintiff took no regular medication.
50On examination, Mr D’Urso noted the plaintiff exhibited some mild weakness in his right shoulder. His cervical range of movement was to 80 per cent in flexion, extension and rotation.
51Mr D’Urso opined that the plaintiff was suffering from a persisting disc prolapse at C4-5 and a prolapse at the C5-6 level (resulting in some right C6 nerve root impingement) caused by the transport accident.
52Mr D’Urso further opined that the plaintiff was permanently restricted from lifting more than 10 kilograms above his shoulder, climbing steps or ladders or working in confined spaces. He required ergonomic facilities wherever possible to maintain a neutral position in his cervical spine, and ought to avoid sitting, standing or walking in excess of an hour at a time.
Mr Gary Speck
53Mr Gary Speck, orthopaedic surgeon, examined the plaintiff on 11 January 2023.
54On examination, Mr Speck found symmetrical neck movements which were “well retained”. Movements of the right shoulder were mildly restricted and there was tenderness in the midline from T1 to C6 and in the right trapezius.
55Mr Speck viewed the films of the plaintiff’s most recent cervical MRI scan and agreed with the reported conclusions. These were of multilevel degenerative spondylosis; moderate to marked C5-6 foraminal narrowing secondary to disc protrusion with compression of exiting C6 nerve root. Mr Speck noted that the C4-5 intervertebral disc prolapse was substantially reduced on the basis of the earlier imaging description. He noted that the C5-6 intervertebral disc prolapse remained but that anterior longitudinal ligament and soft tissue swelling identified in The Alfred hospital imaging was not evident.
56Mr Speck opined that the plaintiff’s continuing symptoms were consistent with the injury sustained in the transport accident. The disc changes had improved but not disappeared. The spinal cord changes had resolved on imaging.
57Mr Speck opined that the plaintiff required work modifications as to the duration and frequency with which he worked with his neck extended and with his arms above shoulder height. He said his right shoulder symptoms were predominantly referred from the neck.
58Mr Speck opined that the plaintiff could work as an Uber driver but acknowledged that he would likely have difficulty with luggage and maintaining elevation of his arms for prolonged periods.
59I do not accept Mr Speck’s opinion regarding the plaintiff’s capacity to work as an Uber driver. First, it is a qualified opinion. Second, it does not deal with the main reason the plaintiff is restricted in his driving capacity – that he has pain performing head checks. I accept the plaintiff’s evidence on that issue and note that Mr Speck did not cavil with the plaintiff’s account of his neck pain on examination. I prefer the opinions of Professor Bittar and Mr D’Urso as to the plaintiff’s driving limitations.
Dr David Freilich
60The plaintiff was examined by Dr David Freilich, neurologist, on 20 April 2021. The plaintiff told Dr Freilich that he suffered constant mild neck pain aggravated by lifting more than 7 kilograms. His right arm felt weaker than before, and his right palm could become numb.
61On examination, Dr Freilich found no muscle wasting, normal power, and the plaintiff’s coordination, reflexes and sensations were normal in his upper limbs. His lower limbs also showed no cervical cord lesion.
62Dr Freilich opined that the plaintiff had made a full clinical recovery from his diagnosed cervical cord injury and there was no neurological impairment.
Dr Robyn Horsley
63Dr Robyn Horsley, occupational physician, assessed the plaintiff via Zoom on 18 January 2023. Dr Horsley recorded the following account from the plaintiff regarding his symptoms:
“Mr Phromphian experiences neck pain that ‘comes and goes’, particularly if he attempts to do tasks that involve pushing, pulling, above head height activities or anything heavy. He avoids static postures involving the cervical spine and right shoulder and over reaching. He experiences neck and right shoulder discomfort a couple of times per month. It can last for a couple of hours. It varies on the visual analogue scale from 4 to 6 out of 10. It is located over the base of the neck, radiating into the right shoulder. It does not radiate down the right arm. He can experience stiffness in the right shoulder at times.
He can experience occasional parasthesiae into the palmar surface of his right hand, beneath his thumb. This is occasional and short-term.
He experiences headaches occasionally; these occur about once per month. If they occur in the afternoon, they can last all night and then are gone by morning. If they occur during the day, they can last a couple of hours. They are located over the occiput, at the back of the head. They are not associated with nausea, vomiting, facial numbness or visual disturbance. He has noticed a reduction in power on the right side. He is right hand dominant.
…
His sitting tolerance, walking tolerance, static standing and dynamic tolerances are all within normal limits. His driving tolerance is limited to one to two hours. He tried to return to Uber driving, but finds that he gets neck and right shoulder pain after one to two hours of driving, which has prevented him from continuing.
… He does sleep at night, but cannot lie down with his neck at 45 degrees. He has to lie flat.
Mr Phromphian has ongoing issues at work; if he gets under a car on a hoist and tries to look up, he cannot look up for very long. His right shoulder also feels uncomfortable. He is unable to push, pull, or lift items … He is aware that he is working at a slower pace and cannot do the whole role. He does no specifically gain assistance from colleagues. He is not considered 100% efficient, so he does not receive any bonuses. He is also aware that he is not a promotion prospect because of his inability to do his full role.”[11]
[11]PCB 156
64During cross-examination, the plaintiff largely accepted that the above account was accurate, save that his driving tolerance was one hour.
65Whilst Dr Horsley did not have the opportunity of examining the plaintiff in person, she opined that the plaintiff’s presentation was consistent with the history of injury in the transport accident. Dr Horsley opined that the plaintiff was permanently restricted in terms of the heavier and more awkward aspects of his job by reason of his neck injury.
Dr Timothy Entwisle
66Dr Timothy Entwisle, psychiatrist, examined the plaintiff on 25 January 2023. Dr Entwisle opined that, apart from frustration and concern about his future, the plaintiff did not describe symptoms of an accident-related psychiatric condition.
Impairment consequences
Pecuniary disadvantage consequences
The extent to which the Plaintiff’s work as a senior technician is affected by his neck injury
67I find that the plaintiff has continued to work full time in his pre-injury role but has difficulty performing tasks which require significant pushing, pulling and working above shoulder height. The plaintiff’s employer accommodates these limitations without the provision of ongoing certificates of capacity. That is an impairment consequence which is to be taken into account.
The extent to which the Plaintiff’s capacity to perform rideshare work is affected by his neck injury
68A significant issue in the case was the plaintiff’s capacity to perform rideshare work following the transport accident.
69The clinical records of the plaintiff’s GP, Dr Lim, record that a Taxi Directorate medical examination form was completed on or about 13 August 2019. The plaintiff agreed that he told Dr Lim “neck all fine now, some residual stiffness shoulders, but not an issue”. He added that at the time, if he did “nothing” he had no pain in his neck. Given that this medical examination form was completed on or about 13 August 2019, I find that the plaintiff likely resumed rideshare driving by September/October 2019.
70The records in evidence from Uber, Ola, and Didi establish that in the six or seven-month period between about September/October 2019 and March 2020, the plaintiff drove a total of 14,957 kilometres whilst performing rideshare work.[12] He grossed $22,049 from that work. That was on top of his full-time hours at BMW.
[12]DCB 63-72
71The plaintiff stopped performing rideshare work in April 2020.
72On 31 March 2020, Melbourne experienced its first lockdown due to the COVID‑19 pandemic. That lockdown continued until 12 May 2020 – a total of 43 days.
73During cross-examination, it was put to the plaintiff that the reason he stopped performing rideshare work in April 2020 was due to the lockdown. He denied this was so and said that the reason he stopped was his neck pain.
74The clinical records of the plaintiff’s GP, Dr Lim, reveal that, following stopping the rideshare work, the plaintiff did not attend his GP until 24 June 2020. On that date, the clinical notes relevantly record the plaintiff having told Dr Lim that he had had ongoing neck pain since the transport accident and that he had limitations on what he could do at work. He was given a certificate of capacity to perform suitable employment.
75It is well known to Melburnians that our streets were almost deserted during the first lockdown and rideshare applications experienced a significant decline in business during that period. I am therefore unable to accept that it was a coincidence that the plaintiff’s neck pain caused him to completely stop the rideshare driving at that time.
76I note, however, there were further lockdowns in Melbourne in 2020 and 2021. Unlike the first lockdown, the subsequent lockdowns saw a surge in home deliveries and therefore work for rideshare drivers.
77I accept the plaintiff’s evidence that he was experiencing difficulty performing the rideshare work because performing head checks was aggravating his neck pain. However, because of his need to provide for his family in Thailand, he continued doing the work. I find that he stopped that work in April 2020 primarily because of the lockdown.
78Further, I find that the reason the plaintiff has not returned to rideshare driving since April 2020 is due to an inability to perform that work because of neck pain. This is because of my finding regarding the plaintiff’s difficulty driving for more than an hour or so due to his neck condition, and my conclusion regarding the plaintiff’s strong motivation to work. I find that the loss of his ability to earn additional income from rideshare driving is a “very considerable” consequence to the plaintiff.
Pain and suffering consequences
79The plaintiff accepted during cross-examination that his neck pain is intermittent. It is provoked by activities such as pushing, pulling, performing tasks above head height or handling heavy things. He agreed that if he is not doing anything, he has no pain. The plaintiff takes over-the-counter analgesia infrequently. In cross-examination, he was unable to remember when he last took any medication for neck pain but agreed that it was probably weeks previously.[13]
[13]Transcript 33
80I accept the plaintiff’s evidence that he avoids taking analgesia as he believes it is not good for his overall health.
81The plaintiff experiences occasional paraesthesia on the palmar surface of his right hand. He also experiences headaches approximately monthly. From time to time, he experiences a sensation of reduction in power in his right upper limb.
82I find the plaintiff’s driving tolerance is limited to one hour because making head checks prompts neck pain.
83The plaintiff agreed, and I find, that his sleep is disturbed by neck pain approximately twice a week.
84The plaintiff deposed to a reduction in, and loss of, various recreational activities by reason of his neck injury. These included swimming, tennis, snorkelling and diving. I accept that the plaintiff has a reduced capacity to undertake those activities because of his neck injury. However, given the number of hours the plaintiff worked pre-injury, there would have been limited time to attend to such pursuits.
85The plaintiff continues to live alone and did not depose to any difficulties in personal care, or any significant restrictions in his capacity to perform household chores.
86The plaintiff deposed to being frustrated and upset by his ongoing neck injury. I accept his evidence as to that. This is a further matter to be taken into account.[14]
[14]Richards v Wylie (2000) 1 VR 79
87Whilst the plaintiff’s pain and discomfort levels might not be described as great, they are nonetheless relevant consequences that must be considered.
Conclusion
88As was said by the majority in Humphries and Anor v Poljak:[15]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering.”
[15][1992] 2 VR 129 at 140
89I am required to consider the whole of the evidence, and the range of possible impairments, not just those that come before the courts. The assessment of whether this is a “serious injury” involves matters of degree and value judgment.[16]
[16]Thapa v Transport Accident Commission [2021] VSCA 239
90I am satisfied that the plaintiff’s pain and suffering consequences, in combination with the pecuniary disadvantage consequences the plaintiff suffers by reason of his neck injury, amount to “very considerable” impairment consequences. The primary consequence which elevates this case to the requisite level is the pecuniary disadvantage consequence of the plaintiff’s inability to continue rideshare driving.
91Accordingly, leave is granted to the plaintiff to initiate a common law proceeding.
92I will hear the parties on the question of costs.
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