Pribil v TAC
[2010] VCC 1308
•10 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04997
| JASON PRIBIL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 September 2010 |
| DATE OF JUDGMENT: | 10 September 2010 |
| CASE MAY BE CITED AS: | Pribil v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1308 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – fractured pelvis.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC and | Slater & Gordon Ltd |
| Mr D C Pulling | ||
| For the Defendant | Mr R J Stanley QC and | Transport Accident Commission |
| Mr P J Gates | ||
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 12 August 2007 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this application is the pelvis/ right hip/right lower limb.
5 The inquiry under subparagraph (a) of the definition focuses attention, firstly, upon whether the injury has produced an organic impairment or loss of body function; and then, secondly, by reference to the consequences of that impairment, whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that a mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
8 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s wife, Natalie Pribil, swore an affidavit on 30 August 2010. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is presently aged forty, having been born on 14 February 1970. He is married with two children, aged six and two.
10 The plaintiff left school after completing VCE and then successfully completed a Bachelor of Economics at Monash University. Thereafter he worked in Europe for three years, and later completed a post-graduate degree in Marketing.
11 On 20 March 2006, the plaintiff commenced fulltime employment as a product and marketing manager for Sensis in Melbourne.
12 On the said date, the plaintiff suffered injury when the bicycle he was riding was struck by a motor vehicle which failed to give way to him (“the accident”).
13 As a result of the accident, the plaintiff suffered a fractured right pelvis, a back injury, bruising and abrasions to his right arm and thigh, and psychological injuries.
14 Following the accident, the plaintiff was taken by ambulance to The Alfred Hospital where he was managed conservatively overnight before he requested to be discharged home the following morning.
15 In cross-examination, the plaintiff explained that on discharge from The Alfred Hospital, he was told: “We have had a look at the scans and we think things are in line so we will just leave it and see how it goes.”
16 The plaintiff was discharged from the hospital on crutches and advised he was to be non weight bearing for three months.
17 In re-examination, the plaintiff explained that he was in severe pain on his return home from the hospital. For the first two weeks after the accident, he was in a great deal of pain, and remained in bed most days, and was looked after by his wife, Natalie, who is an occupational therapist.
18 Several weeks after the accident, the plaintiff contacted his doctor, Dr Kaminsky, at the Elwood Family Clinic, who referred him to orthopaedic surgeon, Mr Zayontz. The plaintiff did not attend an outpatient appointment at The Alfred Hospital because he was seeing Mr Zayontz.
19 The plaintiff underwent x-rays and CT scans of his hips and pelvis. He was gradually able to mobilise using crutches, but remained non weight bearing for about three months.
20 About two months after the accident, the plaintiff returned to work at Sensis, initially working part-time from home. He was unable to complete all projects assigned to him, and had to pass these on to others to complete. By early 2008, the plaintiff was able to resume full time work.
21 The plaintiff agreed that when he saw a physiotherapist on referral from Mr Zayontz on 24 September 2007, he had minimal ache after prolonged positioning and he was sore from underarm crutches. His pain was controlled and he was taking no medication, because at that time he was not weight bearing.
22 The plaintiff began regularly consulting Mr Takac, a psychologist, in October 2007 to deal with stress and anxiety related to his injury.
23 On 7 November 2007, the plaintiff underwent an ultrasound at Cabrini Hospital to rule out deep-vein thrombosis. He also underwent a repeat CT scan.
24 In December 2007, the plaintiff commenced a swim and gym program with monthly physiotherapy. He attended physiotherapist, Ms Berkovits, on thirteen occasions from 13 December 2007 to 1 August 2008.
25 The plaintiff also saw a physiotherapist, Joanna Lawrence, who provided treatment which included a range of movement and muscle strengthening exercises. The plaintiff consulted a dietician in relation to weight gain following the accident due to reduced activity.
26 On 14 August 2008, the plaintiff was made redundant from his employment at Sensis. Several senior positions later became available as a result of a restructure, but the plaintiff was unable to apply for them because of his injuries.
27 Thereafter, the plaintiff developed his own business, Digital Gully, providing online digital marketing services for small businesses. He registered this business as a company in July 2009 but deregistered it in June 2010. The plaintiff supplemented sporadic income from this business with some short term contract work for other employers.
28 In November 2009, the plaintiff obtained full time work for Sporting Plus, a company involved in online sporting competition software for non elite sporting groups, such as local football clubs, preparing fixtures, websites and competitions.
29 The plaintiff’s salary was $90,000 per annum. He worked one day a week on the road visiting sporting organisations, two days working in the office and two days at home. Because of problems within that company, the plaintiff was retrenched, along with a number of other staff in late May 2010.
30 The plaintiff is presently self-employed as a digital marketer.
Sporting Activities
31 Before the accident, the plaintiff was in good health. He was able to undertake an unrestricted range of social, domestic, recreational, work and sporting activities.
32 The plaintiff enjoyed and had participated in various athletic events, including the ‘Half on the Harbour’ (half marathon) in 2001, the ‘Great North Run’ (half marathon) in 2002, the ‘Berlin Marathon’ in 2003 and the ‘Dartford’ half marathon also in that year. The plaintiff also ran in numerous ten-kilometre fun runs, including the ‘Run to the G’, ‘Jubilee Run’ and ‘Nike Run’.
33 In his second affidavit, the plaintiff elaborated upon his running activities. He deposed that his wife was a very keen runner, and running was “their thing”, an activity they enjoyed together.
34 When the plaintiff and his wife lived and worked in the United Kingdom from 2000 to 2003, they lived an active lifestyle. They trained in London for the Berlin Marathon, in which they both ran in 2003, together with the Dartford and Great Northern Run.
35 During that time in London, the plaintiff was doing spinning classes as well as running 6 to 10 kilometres four days a week in preparation for the Berlin Marathon. A whole group of friends and family came to Berlin and they all competed in the race, which was a fantastic experience.
36 The plaintiff cut back to running three days a week when not in training for an event. He had done quite a few runs and half marathons over the years. Running and other sporting activities were also central to the friendships he and his wife had developed.
37 The plaintiff deposed that since the accident he avoided running altogether on the advice of his specialists as it placed a heavy impact on his hip.
38 In cross-examination, the plaintiff explained he had taken up running independently of his wife’s interest in running. He initially took up running as he was planning on playing football again, having last played at the age of twenty. However, his focus then became running itself.
39 The only full marathon the plaintiff has run was the Berlin Marathon. He completed that marathon in just under five hours, finishing 40 minutes behind his wife. He participated in that event because he enjoyed keeping fit and running was part of that.
40 The plaintiff has not run in any organised runs since the 10 kilometre ‘Run to the G’ in 2004. By 2007, the plaintiff was still running regularly for fitness however.
41 Whilst the plaintiff’s wife had health problems associated with the birth of their two children, the plaintiff continued to run during that period.
42 In cross-examination, the plaintiff agreed that he had told Mr Simm in 2009 that he could run for 50 meters and then realised he could not go on. He was then asked about his wife’s comment in her affidavit that last year the plaintiff lasted ten minutes trying to run with her.
43 The plaintiff explained he ran that distance with his wife because he was getting incredibly frustrated at not being able to run and he just pushed through and gave it a go and probably ran about a kilometre.
44 The plaintiff’s wife has run competitive marathons in recent years. The plaintiff has not run with her in any competition since the accident.
45 In cross-examination, the plaintiff explained that when he saw a physiotherapist on 24 September 2007 he had listed only cycling under social history, although he was still running, playing squash, still keeping really active, occasionally swimming and planning on doing a triathlon. At that time, from a competitive point of view, cycling was the focus of his sporting activities.
46 The plaintiff deposed that prior to the accident, he was an avid cyclist, and rode on average 200 kilometres a week. He rode the 60-kilometre trip from home to work in the City twice a week. He used to go for a long ride of up to 80 to 120 kilometres most weekends.
47 In examination in chief, the plaintiff added two ‘Around the Bay’ rides to his bike riding record before the accident.
48 Since the accident, the plaintiff had resumed cycling, and was able to manage a 40-kilometre ride every week. If he rode for too long, his left leg got very sore and stopped working properly. When cycling, the plaintiff had become much more aware of traffic around him, and he constantly looked over his shoulder. Spinning exercises on the bike at the gym aggravated his right hip pain.
49 In his second affidavit sworn on 30 August 2010, the plaintiff deposed he was training for the ‘Around the Bay in a Day’ ride when he was injured in the accident. He was riding at high intensity two or three times a week, 50 to 60 kilometres a time, to and from work, plus a long ride of 100 to 120 kilometres on Sundays.
50 The plaintiff deposed that he now rode his bike for fewer kilometres at a slower pace than he used to, and struggled to keep up with his friends. He did not enjoy riding anywhere near as much as he did before the accident.
51 In cross-examination, the plaintiff confirmed that he now rides his bike up to three times a week, 40 kilometres at a time, usually from Mordialloc to St Kilda. He rides both solo and in groups, with people he meets up with on the road.
52 After riding for an hour and forty five minutes from Mordialloc to St Kilda and back, the plaintiff is usually “shattered”. It “varies” whether he then has to lie down for an hour or so and cannot move around. The plaintiff rides less in the cold weather. The time of day he goes out riding depends on how he is feeling.
53 When asked about competitive bike riding since the accident, the plaintiff said that he last did the ‘Around the Bay’ ride the year before last – 2008, but he could not clearly remember.
54 The plaintiff agreed that it is 90 kilometres from Mordialloc to Sorrento and that if he was riding in ‘Around the Bay’ he would be trying. The plaintiff could not remember in his most recent ‘Around the Bay’ at what location he finished or where he actually rode to.
55 The plaintiff thought the full ‘Around the Bay’ trip would be 210 kilometres, with the riders stopping whilst on the ferry, and later for lunch.
56 When it was put to the plaintiff that he clearly had to be a good cyclist and very fit to be able to compete in such events, the plaintiff said that he was not a good cyclist. “I kind of do it just because my brain’s programmed to do activity and I can give things a go.”
57 In re-examination, the plaintiff said he had not done the ‘Around the Bay’ since the accident, but then having been reminded that his earlier evidence was that he in fact did it in 2008, the plaintiff said he could not remember how far he had ridden or whether he completed that ride.
58 Further, it became apparent in cross-examination that in addition to that ride, the plaintiff had done other rides not mentioned in his affidavits.
59 Since the accident, the plaintiff has ridden twice at Kinglake, one ride of 90 kilometres and another in March 2010 of 120 kilometres. The plaintiff agreed it was an uphill ride on a course designed to impose considerable difficulty upon the riders.
60 In January this year, the plaintiff rode up Mt Buller for the first time. He agreed it was a 16-kilometre ride up the mountain and over that distance the climb rose almost a kilometre over 900 metres. The plaintiff agreed it was a very very steep and difficult climb on a bike. It took the plaintiff a good two and a half hours to ride up the mountain, whereas it would have taken him an hour before the accident.
61 The plaintiff did the Mt Buller ride for fun. He thought he had a pretty high tolerance of pain, and that helped. He explained he felt pain just sitting in the witness box but he did the ride up Mt Buller for the challenge.
62 In re-examination, the plaintiff confirmed that until 2004 his involvement in bike riding was pretty much zero. Between 2004 and 2007, he was doing “pretty big ks” – long rides on a weekend up to 150/200 kilometres and then riding two to three times during the week as well. He was averaging 400 kilometres a week.
63 Since the accident, whenever the plaintiff rides his bike he gets pain in “either his hip, always his hip and often in his back”. The strength he has in his right leg is “pathetic” compared to what it was, and when he gets home it takes a while to recover.
64 The plaintiff continues to ride because keeping active is his passion: “It is something that’s in my blood and it’s in my DNA and it’s just – I am just programmed.” Cycling is what the plaintiff and his children love.
65 It frustrates the hell out of the plaintiff having to be a bystander and not participate in these activities he previously enjoyed.
66 At the time of the accident the plaintiff was playing C grade pennant squash once a week plus occasionally having a practice session.
67 The plaintiff has been advised to avoid sports such as squash or tennis which would flare up his symptoms. It was a difficult balance for him; if he exercised he was sore, and if he did not exercise he was stiffer. He often sat with his left leg under his right leg for support.
68 The plaintiff has been involved in snow skiing since about the age of fifteen, skiing at various locations, including New Zealand in 2000, Australia in 2003, various resorts in the United States in 2004 and Mt Hotham in 2007.
69 Since the accident, the plaintiff has tried skiing. In early 2009, he deposed that he managed at the time, but paid for it later, with it taking him three to four weeks to recover after his symptoms flared up.
70 The plaintiff struggles to ski a basic run without moguls and cannot keep pace with his six year old daughter.
71 In cross-examination, the plaintiff explained he does not ski the same way he used to. He agreed that skiing imposed a stress or strain or impact on his legs and hips. He confirmed he had difficulty squatting and that when he did it “hurt like hell”.
72 This season the plaintiff has been skiing on a five-day trip when he skied, in total, four to five hours in five days.
73 The plaintiff was asked about an entry in his general practitioner’s clinical file on 17 October 2008 where “pain and backache around the hip recurred between 12 and 18 August when skiing” was noted.
74 The plaintiff explained that since that occasion, he had not tried to ski as much as at that time and he has really tempered his skiing.
75 The plaintiff cannot do anywhere near the skiing he used to do and he gets extremely tired. He limits himself to the easy runs, whereas before his skiing was bordering on the extreme, going backcountry and not on designated runs – a level of skiing with which he had no difficulty.
76 When asked about whether he participated in rock climbing since the accident, the plaintiff said he was pretty sure he had not done it. “I mean anything where I’m scared I’m going to fall on my hip or requires too much flexibility, I try and keep away from.”
77 The plaintiff denied that as he had turned forty he would have been reducing his sporting activities had the accident not occurred.
Domestic Activities
78 The plaintiff deposed that following the accident he was unable to help his wife with gardening and household maintenance tasks – a situation that led to feelings of guilt and helplessness on his part. The plaintiff and his wife have to rely on family to assist with childcare, meal preparation, household maintenance and housekeeping.
79 Home and gardening help was provided by the Transport Accident Commission at an early stage.
80 The plaintiff works doing month to month maintenance in the garden. He needs to lie down and rest for an hour afterwards. Squatting on his haunches is very difficult.
81 In cross-examination, when asked about household tasks that gave him a problem, he said he tried not to do anything that caused him pain. He could not do vacuuming without pain. Gardening “absolutely slaughtered him”. He did some gardening but after half an hour or so “he is pretty shattered”.
82 When he does gardening he has to go and lie down on the couch for an hour and then pretty much cannot move around.
83 Because of his injury, the plaintiff had problems caring for his six year old daughter, Sascha, when she was a baby. He was unable to assist with bathing and caring for her, as a result of which she developed some behavioural issues that caused stress for the family.
84 The plaintiff now struggles to keep up with Sascha and his two year old. He misses out on family activities he would have enjoyed had it not been for the accident.
85 Bending, kneeling or stooping down and playing with his children causes increased pain. The plaintiff finds himself sitting on the ground in the backyard throwing and catching a ball instead of running around or wrestling with his children.
86 In cross-examination, the plaintiff confirmed he did have a Facebook page which showed him engaging in a number of sporting activities.
87 In re-examination, the plaintiff described photographs of his various activities both prior to and subsequent to the accident.
Pain
88 The plaintiff deposed in August 2010 that he had ongoing hip and back pain all day, every day. He can no longer pursue his passion to be fit, healthy and active every day. He lived and breathed at being active as he was competitive and aggressive by nature. Exercise was like an addictive drug which he needed and he fitted in time to run or cycle each day based around work or when the children were sleeping.
89 The plaintiff’s sleep continues to be adversely affected by hip and back pain. He is woken at night by pain when he rolls onto his right side as it feels like he is lying on a brick. The plaintiff wakes up very sore in the hip and back.
90 It is far easier for the plaintiff to sit down to dress because his leg and back are “stiff as a board”, especially in the mornings.
91 The plaintiff has lost strength and power in the hip; his speed and agility was his strength. Now he sits awkwardly. He does very few domestic chores around the house which creates additional tension and he struggles to keep the weight off.
92 Car travel causes the most aggravation of his hip and back symptoms which is now a greater problem working for himself. On a family driving weekend away they stop halfway overnight to break up a prolonged car trip. The plaintiff’s hip symptoms make travelling on public transport very difficult if he is unable to get a seat.
93 The plaintiff is very tired and weary by the end of each working day and it is hard to push through during the week and he is “stuffed” by the weekend. He relies on his weekends to recover.
94 The plaintiff is in tune with his body after years of exercise. After rehabilitation, the plaintiff was pleased as the weeks progressed and he continued to improve but then that improvement stopped.
Recent Treatment
95 On 5 November 2008, Mr Zayontz recommended a regular Pilates strengthening program and intermittent physiotherapy.
96 By late 2009, the plaintiff was so concerned about the decline of his symptoms that he returned to Mr Zayontz, who arranged an MRI scan of his hip.
97 The plaintiff also consulted Brian Coughlan, physiotherapist, for some short term relief of hip symptoms and some exercises, which he still does to give him relief from the worst of his pain. Mr Coughlan recommended only driving certain vehicle models to limit the aggravation of hip and back pain.
98 The Transport Accident Commission provided limited funding for
physiotherapy treatment. All physiotherapists the plaintiff has seen have told
him that bike riding is the one thing that is “okay”.
99 The plaintiff understands from investigations and consultations that the degeneration in his hip joints is worsening. The plaintiff avoids taking medication.
Lay Evidence
100 The plaintiff’s wife, Natalie Pribil, swore an affidavit on 30 August 2010.
101 Mrs Pribil and the plaintiff have been married for ten years and been together for more than thirteen years. They met through Mrs Pribil’s father who played squash with the plaintiff.
102 Before the accident, she and the plaintiff lived a full and active life and loved being fit. The plaintiff is a decent, very competitive man. She is a very keen runner and the plaintiff added running to his various sporting passions.
103 Mrs Pribil has trained and participated in numerous running events and fun runs over the years. She and the plaintiff enjoyed running together and competed in London in a number of events. The highlight at that time was them both completing the Berlin Marathon, along with other family members and friends.
104 She and the plaintiff have skied all over the world and the plaintiff was good on downhill slopes or moguls.
105 Their daughter, Sascha, was born in 2004, at which time the plaintiff continued exercising daily. He was training for ‘Around the Bay’ when involved in the accident. He was also trying to complete a triathlon one day. The plaintiff was then cycling 60 kilometres to and from work twice a week, plus a long ride on the weekends. He was also running three days a week and playing C grade pennant squash weekly.
106 As Mrs Pribil needed help around the house and with the baby, the plaintiff would usually fill his daily exercise need by cycling to and from work or exercising when their daughter was asleep.
107 The plaintiff is not the same person as he was because of his injuries. He no longer enjoys active sporting pursuits. The plaintiff is not the type of person who complains a lot and he tries to push through despite his restrictions.
108 The plaintiff complains to her that he has constant pain in his hip, pelvis and lower back. She believes him and sees him suffering from what she notices in his facial expressions and the awkward way he sometimes sits. He favours that side probably unconsciously at times. He struggles most with prolonged sitting, especially in the car, and they have to break up long trips so he can move around and reduce his pain and stiffness.
109 The plaintiff is conscious of knocking or jamming his hip.
110 The plaintiff’s sleep is affected because of his hip, back pain and stiffness and she does not believe he gets a restful sleep. Their intimate relationship is affected by the plaintiff’s injury.
111 The plaintiff has to sit like a stiff old man to get dressed.
112 The plaintiff does no more than cursory maintenance of the garden from time to time, then has to go and lie down and recover afterwards. Further, since the accident, the plaintiff has not been able to do many of the domestic chores around the house which sometimes can be a source of tension between them.
113 The plaintiff avoids using medication and does exercises or has bed rest to cope with worsening symptoms. By the end of the working week he is exhausted for the weekend and he spends most of it recovering.
114 The plaintiff has tried very hard at rehabilitation and was almost euphoric at times when his symptoms improved. At other times she has seen how disappointed he has been having to avoid activities, risking heavy impact, like running or squash. The plaintiff lasted ten minutes trying to run with her last year.
115 When cycling, the plaintiff is no longer able to push himself for intense or long rides or keep up with his colleagues. He gained more than ten kilograms after the accident and had to concentrate very hard to get rid of the weight with the help of a dietician.
116 Increased driving in his current job makes the plaintiff’s hip and back symptoms worse. He has difficulty with public transport as he would rarely get a seat on the train.
117 In the last year the plaintiff’s symptoms and restrictions have worsened. He has gone to a new physiotherapist who has given him exercises. He has tried physiotherapy, Pilates, gym and exercise, but his constant pain and stiffness continues, though the level of symptoms varies during the day, from day to day.
118 The plaintiff’s ability to play with their children is restricted, which frustrates her and the children. The plaintiff struggles to bend, squat or lift and cuddle, carry or wrestle with them. He cannot keep up with Sascha. Recently she saw the plaintiff sitting on a step in the yard throwing a ball to the girls rather than actively playing with them.
119 Mrs Pribil is running again and participating in a number of events without the plaintiff who lives vicariously through watching sport or watching her run. The plaintiff misses out on them running together as a family as they did when Sascha was young and one of them would push the pram.
The Plaintiff’s Medical Evidence
120 The plaintiff attended the Emergency Department at The Alfred Hospital on the said date following the accident.
121 The plaintiff’s injuries consisted of grazes to the right arm and right thigh and a fracture of the right hemipelvis which involved the right acetabulum, right superior pubic ramus and right iliac bone. Management was conservative and the plaintiff was to remain non weight bearing.
122 It was noted the plaintiff’s condition remained stable throughout his admission. He was able to commence physiotherapy and occupational therapy. On 13 August 2007, he was discharged. An appointment in the Outpatient Orthopaedic trauma Clinic on 31 August 2007 was cancelled.
123 Mr Zayontz, orthopaedic surgeon, provided a report dated 1 December 2008. The plaintiff first saw him on 29 August 2007 on referral from his family doctor.
124 Mr Zayontz described the treatment at The Alfred Hospital.
125 Mr Zayontz noted that he sent the plaintiff for repeat x-rays which confirmed the fracture had not displaced further since the original imaging. Mr Zayontz thought that the plaintiff had an extensive fracture extending through the medial wall of his acetabulum with minimal displacement. There had been no neurovascular complications.
126 Mr Zayontz confirmed the advice the plaintiff received from The Alfred Hospital Trauma Unit that the plaintiff needed to remain non weight bearing for three months.
127 CT scans were repeated on 12 September 2007, which confirmed the fracture had not displaced.
128 On 18 September 2007, Mr Zayontz referred the plaintiff for physiotherapy at the six-week mark to commence a range of movement exercises and muscle strengthening.
129 On 7 November 2007, the plaintiff had a Doppler ultrasound at Cabrini Hospital to exclude a DVT. The ultrasound was normal. On that date he also had a repeat CT scan which confirmed the fracture remained undisplaced and that good bone healing was occurring. The plaintiff was also noted to have good clinical improvement.
130 Mr Zayontz allowed the plaintiff to commence weight bearing but advised that he avoid significant impact exercises and told him it would be twelve months before he would be allowed to run.
131 On review on 8 May 2008, Mr Zayontz thought the plaintiff’s x-rays continued to look satisfactory with no evidence of avascular necrosis (“AVN”). At that time he noted the plaintiff had intermittent pain in the hip when stressing it at the gym and he recommended the plaintiff reduce his activities.
132 On 5 November 2008, Mr Zayontz noted the plaintiff was progressing well. His x-rays showed good union with no evidence of AVN. Mr Zayontz recommended a regular Pilates strengthening program and intermittent physiotherapy. He noted the plaintiff could return to see him in a year if he had any ongoing problems.
133 Mr Zayontz concluded the plaintiff had made a good recovery from his injury.
134 Mr Zayontz last saw the plaintiff on 12 November 2009, at which time the plaintiff complained of the recent onset of right hip pain.
135 On examination, the plaintiff had a slightly reduced range of right hip movement. His flexion range was 0 to 110 degrees compared to 0 to 130 degrees on the left. Internal rotation was 20 degrees and external rotation was 30 degrees.
136 The plaintiff’s x-rays at that time were satisfactory, with good evidence that the fracture had healed. However, Mr Zayontz was concerned about the plaintiff’s hip pain and slightly reduced range of movement and therefore arranged for the plaintiff to have an MRI scan.
137 The MRI scan which was performed on 29 November 2009 confirmed the fracture had united. It showed mild degenerative changes in the hip as evidenced by partial thickness chondral wear on the acetabular and femoral sides, as well as mild osteophytes. The plaintiff also had a mild degenerative oblique tear of his labrum. At that stage Mr Zayontz noted no further treatment was required and he planned to review the plaintiff once again in a year.
138 Robert Takac, psychologist, wrote on 26 September 2009 that the plaintiff was referred to him by Dr Kaminsky in October 2007 due to stress and anxiety regarding his inability to perform at work following the accident.
139 On that first visit, the plaintiff was on crutches and told of the problems of being unable to go to work and working from home.
140 The plaintiff told Mr Takac his wife had recently had a miscarriage and that the plaintiff felt that he was a burden to her at that time of difficulty.
141 Mr Takac noted the plaintiff found rehabilitation challenging, he was proud of his physical condition and his fitness. The plaintiff often expressed concern over his weight gain and frustration with the slow rate of recovery.
142 To the date of that report the plaintiff felt he had not regained his fitness and that after a cycle he felt stiff and sore. He also spoke of discomfort bending down or carrying his daughter.
143 In Mr Takac’s view, the plaintiff’s home, work and sporting life, as well as his emotional wellbeing had been significantly impaired by the accident.
144 Brian Coughlan of Bayside Physiotherapy reported on 1 June 2010 that he saw the plaintiff four times – twice in November and twice in December 2009 – when the plaintiff presented without referral for treatment of his right groin and hip pain.
145 The plaintiff told Mr Coughlan that he continued to cycle and he was doing more than 100 kilometres per week over two or three rides. When he cycled it was painful for the first hour but after that it became more tolerable. The plaintiff could not walk for more than fifteen minutes without the onset of more severe groin and buttock pain.
146 Examination of the right hip revealed a restriction of movement, particularly into flexion and abduction. Mr Coughlan thought there was significant tightness in the right hip and although it was possible some of the plaintiff’s pain may have been coming from his back, the general indication was that it was coming from his hip which was obviously severely damaged in the accident, noting it was very difficult to fracture the acetabulum.
147 In Mr Coughlan’s view, the plaintiff was left with a very likely prognosis of degenerative joint disease in the right hip.
148 Mr Coughlan explained that the goal of physiotherapy was to try and improve the movement of the right hip in the hope that it would improve the plaintiff’s endurance and his capacity to cycle and walk without pain.
149 On the last visit, Mr Coughlan advised the plaintiff to see an orthopaedic surgeon.
150 Mr Coughlan thought the plaintiff’s ability to walk long distances would be severely affected by his injury and his enjoyment of his pastime of cycling was also curtailed. He expected the plaintiff would require a hip replacement later in life.
151 Dr Kaminsky provided a short report of 25 October 2008. She noted the history of the incident and referral to Mr Zayontz.
152 On a recent review, she noted the plaintiff still complained of stiffness and pain, in particular after prolonged sitting or attempts to run or workout at the gym. She recommended he continue with regular physiotherapy to improve flexibility and strength, in particular during exacerbations. She suggested review with the orthopaedic specialist as the plaintiff had not fully recovered and tired easily with exertion.
153 Dr Kaminsky last reported on 29 July 2010. On review on 9 March 2010, the plaintiff reported his limp was giving him daily pain, in particular with flexibility on lifting and bending. In addition, his knee and back were becoming stiff and at that stage the plaintiff was waiting for an MRI scan.
Medico-Legal Evidence
154 Mr Kevin King, orthopaedic surgeon, examined the plaintiff on two occasions, initially in October 2008, and more recently on 1 June 2010.
155 In his earlier report, Mr King noted that the amount of force which caused the rather complicated fracture was considerable.
156 In re-examination in June 2010, the plaintiff told Mr King that over the last twelve months there had been mild but definite deterioration in the severity of his right upper hip symptoms.
157 The plaintiff told Mr King he had found car driving in particular aggravated his hip symptoms and that he had returned to cycling on a fairly regular but reduced basis, up to three hours a week, and could manage well. He avoided running and more vigorous sports.
158 On examination, the plaintiff said his most serious concern was a persistent nagging ache in the outer side of his right hip and intermittently in the right groin, present for most of each day and on an average of moderate severity 4 out of 10, but it had increased a little over the last twelve months and for several hours a week it could be up to 6 out of 10 for a few hours.
159 The plaintiff also complained of an intermittent nagging ache in the low back region of mild to moderate severity, present for several hours at least every day and brought on by exertion and fatigue. He also complained of an occasional ache in the right knee whilst cycling and he found gardening, in particular, tended to stir up his symptoms.
160 On examination of the lumbosacral spine, there was mild but definite limitation of lower back movement by some spasm and discomfort – approximately three quarters of the normal range of all movements was present.
161 There was mild but definite limitation of all movements of the right hip joint – flexion, abduction/adduction, internal/external rotation – all lacked 10 degrees as compared with the left hip joint, and movement was limited by some spasm and discomfort.
162 Mr King’s clinical assessment remained basically unchanged since his first examination. His view clinically and radiologically was that the plaintiff had mild traumatic secondary osteoarthritis involving his right hip consistent with the original fracture lines having involved the articular surface of the acetabulum and the medium and superior parts of the socket.
163 Mr King noted that the plaintiff’s symptoms had become a little worse and it was probably a reasonable assumption there had been some slight increase in the secondary osteoarthritic changes in the right hip joint but that had been only to a mild degree as the clinical signs were unchanged.
164 Mr King noted the injuries to the plaintiff’s lumbar spine resulted in damage to the lumbar disc and associated ligamentous structures with a fracture of the pelvis also involving the right sacroiliac joint adequately explained the persistence of nagging lower back pain which seemed to remain unchanged over the last eighteen months.
165 Mr King thought the combination of low back and right hip injuries would adequately explain the persistence of the plaintiff’s symptoms and represented long term impairment to function of mild to moderate severity involving the right hip and low back region in a previously fit and very active, youngish man.
166 Mr King would expect some mild deterioration to occur in the plaintiff’s right hip over the next ten to twenty years. Mr King thought there was still a possibility, not a probability, that the secondary osteoarthritic changes may progress to the stage of eventually requiring a total hip replacement in fifteen or twenty years.
167 Mr King noted the plaintiff was obviously strongly motivated with a high threshold and the probability was that he would be able to continue in his current office job for the foreseeable future although with some slowly increasing difficulty over twenty years. He would also continue to be limited in his sporting activities.
168 Dr Serry, psychiatrist, examined the plaintiff for medico-legal purposes on 15 December 2008.
169 On mental state examination, the plaintiff demonstrated a normal range of affect and was not depressed. Dr Serry noted, however, there was post traumatic anxiety and mild phobic features. There was no abnormality of thought stream or content and there were no psychotic features. Cognitive assessment was unremarkable and insight was retained.
170 Mr Serry found that the plaintiff experienced quite prominent post traumatic features, including regular intrusive accident-related thoughts, flashbacks, anxiety on the road as a driver, avoidance of being a passenger, anxiety and increased awareness when riding his bike and a tendency to avoid the accident site and a sensitivity to other reminders.
Investigations
171 A CT scan of the plaintiff’s pelvis was carried out at The Alfred Hospital on 13 August 2007. A complex and comminuted fracture of the right hemipelvis and acetabular fracture were demonstrated.
172 A CT scan on the previous day at The Alfred Hospital showed fractured right hemipelvis involving the acetabulum, superior pubic ramus and right ileac bone.
173 Mr Zayontz organised an x-ray of the plaintiff’s pelvis on 29 August 2007. It showed a comminuted fracture involving the medial wall of the right acetabulum. Fractures extended through the lateral aspect of the right superior public ramus. There was an associated fracture through the right inferior of the public ramus. There was only mild displacement. However, the fracture line extended to the acetabular articular surface.
174 A duplex ultrasound of the veins of the right leg was carried out on 7 November 2007 at Mr Zayontz’s request. He noted the deep veins of the right leg appeared normal with no evidence of DVT.
175 A CT scan of the pelvis was organised by Mr Zayontz on 12 September 2007. The report noted an extensive fracture which was comminuted involving the right hemipelvis. This extended from the right iliac bone where it communicated with the right S1 joint and extended anteriorly and inferiorly to involve the articular margin of the roof of the acetabulum through the mid and then anterior aspects of the articular margin of the acetabulum and through the proximal portion of the superior pubic ramus, where marked comminution was noted. A thin sclerotic line involving the inferior pubic ramus was seen but no convincing fracture was demonstrated at that site. It was noted there was no significant step seen in the articular surface of the acetabulum. However, at the anterior margin, fracture fragments were separated by approximately three millimetres.
176 On 5 November 2008, further x-rays were organised by Mr Zayontz of the plaintiff’s right hip and pelvis.
177 There was thickening of the iliopectineal line on the right side which was noted to be consistent with the healed fracture of the right side of the pelvis. There was no evidence of right hip OA and the visualised margins of the right acetabulum appeared smooth.
178 The MRI scan of the right hip organised by Mr Zayontz on 29 November 2009 showed the old anterior medial acetabular facture. This was healed with mild deformity/step which predominately involved the acetabular fossa rather than the articular surface. There was mild superomedial acetabulum and posterior hip joint partial thickness chondral wear. There was mild osteophytic spurring with degenerative anterosuperior labral tear. There was focal superior acetabular margin full-thickness fissure. There was borderline joint hip effusion and no osteonecrosis.
179 An x-ray of the pelvis and hip carried out on 12 November 2009 showed minor sclerosis at the medial aspect of the right acetabular which it was noted probably indicated a previous healed fracture. There was minor central cartilage loss from each hip and small marginal osteophytes seen on the right.
The Plaintiff’s Other Evidence
180 The plaintiff tendered a folder of photographs of his skiing and running activities prior to the accident and a folder of him attending such activities without participating in the period after the accident.
The Defendant’s Medical Evidence
181 The plaintiff was examined by Mr Simm, orthopaedic surgeon, on 3 June 2009.
182 The plaintiff told Mr Simm that since the accident he had stiffness and soreness in his low back in the left lumbar region. He also had restricted movement of his low back and it tended to become stiff and painful without exercise. He suffered from back symptoms on most days.
183 The plaintiff complained of persistent pain over the front of the right hip. It felt stiff and clicked frequently on movement. He had some difficulty with full right hip flexion to reach his right foot to cut his toenails. He was aware of symptoms on most days.
184 The plaintiff told Mr Simm he was able to walk for quite long distances but prolonged distance walking and cycling increased the symptoms in his back and hip. He had attempted to run but if he ran for only fifty metres his pain increased.
185 The plaintiff told Mr Simm he had no difficulty negotiating stairs. He had soreness with prolonged periods of driving. He resumed cycling but his endurance had been greatly reduced.
186 Mr Simm noted the plaintiff presented in a straightforward and co-operative manner. There was mild guarding and restricted forward flexion of the thoracolumbar spine with complaint of tightness and discomfort in the left lumbar region on full flexion. Lateral flexion to the left was to 30 degrees, at which point the plaintiff complained of lumbar pain, more on the right. Lateral flexion to the right was to 40 degrees without pain. Rotation was normal, although the plaintiff complained of some discomfort on full rotation.
187 There were no signs of radiculopathy or neurological abnormalities in the lower limb.
188 Examination of the right hip revealed restricted movement, with irritability at extremes of movement. There was no malalignment of the right lower limb.
189 Mr Simm viewed the plain x-rays of the pelvis taken on 29 August 2007 and 7 May 2008 and the CT scan of 12 September 2009. Mr Simm diagnosed fractures of the right hemipelvis. In particular, he noted fractures of the right superior and inferior pubic ramus, right acetabulum and ilium. He also diagnosed a soft tissue injury of the lower back.
190 Mr Simm concluded the plaintiff had chronic and recurrent low back pain and stiffness and right hip pain and stiffness. Mr Simm thought these conditions were affecting the plaintiff’s ability to sustain strenuous physical activities. He noted the plaintiff has been advised not to participate in impact activities such as squash, which presumably was to provide some protection to his right hip joint.
191 Mr Simm considered the plaintiff had received appropriate treatment, noting he resumed physiotherapy and that no other treatment should be considered.
192 Mr Simm thought that there had been some reduction of the plaintiff’s leisure activities. He commented the plaintiff was previously an enthusiastic runner and participated in running events, such as marathon events, and also played squash. He had been unable to return to these activities.
193 Mr Simm’s prognosis was for chronic low back and right hip symptoms.
194 Mr Simm thought that the plaintiff carried the risk of developing post traumatic osteoarthritis of the right hip. Mr Simm noted it was almost two years from the accident and that would probably exclude the complication of avascular necrosis of the right femoral head. Mr Simm thought that further deterioration was not likely to occur, but may occur.
195 Mr Simm thought the plaintiff was restricted in cycling and that his endurance and speed had been reduced. He considered that there was no restriction of the plaintiff’s activities of daily living.
196 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, on 3 May 2010.
197 The plaintiff told Mr Dooley he had returned to bike riding after the accident and currently rode 40 to 50 kilometres one to three times a week. He said at times he struggled with the riding and noted tingling of both the right arm and also the right leg while riding. The plaintiff no longer engaged in impact leisure pursuits such as running and squash.
198 On examination, there was no local tenderness of the spine. Flexion was to 80 degrees and extension to 25. With those movements the plaintiff noted pain in the upper lateral right thigh. Lateral flexion and rotation to the left and right was to 25 degrees.
199 Flexion of the right hip was to 90 degrees. There was reduction of abduction of the hip in flexion and some pain felt in the groin with this movement. External rotation was reduced on the right when compared to the left side. Neurologically the lower limbs were intact.
200 Mr Dooley had available the plain x-rays and report of the MRI scan carried out in November 2009. He noted the scan reported an old antero medial acetabular fracture that had healed with mild deformity. It was stated that that deformity involved predominantly the acetabular fossa rather than the articular surfaces of the acetabulum. There was mild supero medial acetabular and posterior hip joint partial thickness chondral tear and there was a degenerative antero superior labral tear.
201 Mr Dooley diagnosed a fracture of the right hemipelvis which involved the superior pubic ramus and extended into the acetabular region. He noted the CT scan suggested that a fracture line also extended into the right sacroiliac joint.
202 Mr Dooley thought the fracture of the pelvis was a significant injury and required significant force in a young, fit man.
203 In Mr Dooley’s view, the ongoing symptoms the plaintiff described of pain in the region at the trochanter and stiffness and tightness in the groin were consistent with his injury.
204 Mr Dooley noted patients sustaining that sort of injury would note some intermittent pain in the lower back, trochanteric and groin region and also pain in the thigh and knees. In his view, most patients in these circumstances would not be able to return to active impact leisure pursuits.
205 Mr Dooley noted the plaintiff was very fit prior to the accident. Since then the plaintiff had been able to return to cycling but sensibly avoided running and squash.
206 Mr Dooley considered that there was no doubt that the plaintiff was at some risk of developing slowly progressive post traumatic osteoarthritis of the hip joint but that the risk, however, for avascular necrosis of the femoral head had now passed.
207 In Mr Dooley’s view, the low back pain that the plaintiff experienced related to the fracture extending into the sacroiliac joint region and was not a separate injury.
208 Mr Dooley thought the plaintiff did not have established osteoarthritis of the hip joint. However, the plaintiff had a traumatised articular surface of the acetabulum that may ultimately lead to slowly developing osteoarthritis of that joint.
209 Mr Dooley considered the plaintiff should be kept way away from arthroscopy of the hip joint as it was a joint that did not lend itself to arthroscopy easily and this procedure could damage the articular surfaces of the hip joint and hasten arthritic change.
210 Mr Dooley thought that the appropriate treatment for the plaintiff was to continue his exercise and fitness program and continue to ride his bike.
211 Mr Dooley concluded the plaintiff would continue to note intermittent pain in the right lower back, trochanteric and groin region. He would remain unable to engage in active impact, leisure or sporting pursuits and was at some risk of developing slowly progressive post-traumatic degenerative changes. In real terms, Mr Dooley believed the risk of the plaintiff developing significant osteoarthritic change within his right hip was low.
212 Mr Dooley considered the plaintiff was not able to return to his pre-injury level of functioning. He did not believe the plaintiff would be able to return to running and squash but thought that he would be able to continue cycling. In his view, the plaintiff would be unable to engage in active, heavy, physical work and would have difficulty with work that involved a lot of bending or lifting, or work that involved prolonged standing in one position.
213 The plaintiff was cross-examined about Dr Kaminsky’s note of an attendance by the plaintiff on 17 October 2008 which set out the plaintiff reported: “Pain/backache and around right hip recurred after skiing 12-18 August.”
214 It was noted that the plaintiff experienced an exacerbation of right hip and back pain and stiffness after exertion, e.g. “prolonged driving, prolonged sitting, bicycle riding can radiate down low lateral aspect of right leg”.
215 It was noted physiotherapy helped reduce pain and stiffness. The plaintiff still felt weakness in the right leg and physiotherapy worked on muscle strength and backache, which plaintiff stated was as a result of leg pain and stiffness.
216 The plaintiff complained of limited flexibility, especially getting off the floor quickly. He experienced pain in the right hip when he ran to the train – “symptoms had plateaued”.
Findings
217 I am satisfied that the plaintiff suffered a fracture of his right hemi pelvis involving the right acetabulum, right superior ramus and right iliac bones in the accident, as confirmed by x-rays taken at The Alfred Hospital on the said date.
218 The pelvis fracture did not require surgery and has not required a great deal of treatment to date. The plaintiff was discharged from the care of his orthopaedic surgeon late last year and there is no suggestion that the plaintiff requires further treatment.
219 I accept that the plaintiff’s complaints of hip and back pain are consistent with the findings on radiological investigation which have been carried out and the clinical findings of medical practitioners who have examined him in this case.
220 The issue for consideration however is impairment not injury
221 This claim relates solely to the interference with the plaintiff’s enjoyment of life and leisure pursuits as a result of his pelvis fracture. There is no suggestion that this fracture affects the plaintiff’s capacity to work as a digital marketer, save for some difficulty experienced in driving around to see clients.
222 The plaintiff’s case is based on his claimed inability to engage in sporting pursuits to the level he did prior to the accident.
223 Before the accident, the plaintiff was obviously a very fit man who enjoyed a number of sporting pursuits.
224 Whilst he was involved in extensive competitive running prior to the accident, it is apparent that from 2004 his attention was directed mainly to cycling, and any running he did thereafter was for general fitness.
225 Although I am unsure as to the present extent of the plaintiff’s ability to run, I accept he does have some difficulty and can run nowhere near the level he previously enjoyed. Whether it is 50 metres and having to stop, as he agreed in cross-examination he told Mr Simm, or lasting ten minutes trying to run with his wife as she deposed, clearly the plaintiff is restricted by his pelvis injury.
226 Prior to the accident, the plaintiff played C-Grade pennant squash. Since the accident he has been unable to resume playing given the impact of that game on his hip.
227 I accept, as confirmed by doctors in this case and conceded by counsel for the defendant, that the plaintiff is no longer fit to engage in high impact activities such as running and squash as a result of his pelvis injury.
228 Further, I accept that whilst the plaintiff has been able to continue skiing since the accident, the level at which he skis is significantly reduced.
229 The main focus of the plaintiff’s claim related to the impact his pelvis fracture has had on his bike riding.
230 Having taken up that cycling in 2004, the plaintiff participated in a number of rides prior to the accident. He also rode extensively during the week, to and from work, and also on the weekends.
231 The plaintiff deposed that since the accident, he rides up to three times a week, up to about 40 or 50 kilometres each time. The plaintiff gave a similar description of his post-accident bike riding to medico-legal examiners in this case.
232 However, it became apparent in cross-examination that the plaintiff has competed in much more arduous bike races since the accident.
233 In particular, the plaintiff rode in the 2008 ‘Around the Bay’ ride, a ride which is 210 kilometres in total, which involved riding to Sorrento, catching the ferry to Queenscliff, having lunch and then riding back to Melbourne.
234 However, the plaintiff was unsure how much of this ride he had actually done and was not particularly clear as to the extent in which he had participated in competitive bike riding since the accident.
235 Further, the plaintiff rode 19 kilometres up Mt Buller for the first time in January 2010. He also rode 120 kilometres in a mountain race at Kinglake in March this year, having also ridden 90 kilometres in that area on another occasion since the accident.
236 In considering the seriousness of any impairment relating to the plaintiff’s injury, I must look not only at what the plaintiff has lost by virtue of that injury but also what he has retained: see Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260 and also Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12.
237 The ability to ride at the level ultimately conceded in cross-examination is not, in my view, a consequence which meets the test in Humphries v Poljak (supra).
238 The plaintiff explained that he rode to this level because bike riding was his life and passion and that he rides despite sometimes being “shattered” even with local riding.
239 I do not accept the plaintiff could attempt, let alone undertake this level of riding if he is in constant pain as he has described. The nature of the rides undertaken goes much further than stoicism or a man acting on the advice of his physiotherapists.
240 The plaintiff is obviously an intelligent, well-educated, articulate man and he presented in the witness box in this way.
241 However, I thought at times he was evasive in answering questions in cross- examination and somewhat reluctantly admitted to a greater level of bike riding than he had deposed to.
242 The post-accident ‘Around the Bay’ ride and the Mt Buller and Kinglake rides were not added to his evidence in examination-in-chief, as were his two ‘Around the Bay’ rides in which he participated prior to the accident.
243 Further, I do not accept the plaintiff was being truthful when he said he could not recall how much of the ‘Around the Bay’ ride he had in fact completed only two years ago. A man with the level of interest in his own fitness he has described would certainly recall these details.
244 It was not for the defendant to raise this issue with the plaintiff’s wife to clear it up as the plaintiff has the onus in this application. In any event Mrs Pribil deposed that when cycling, the plaintiff is no longer able to push himself for intense or long rides or keep up with his colleagues
245 As the level of riding deposed to was considerably less than the plaintiff admitted in cross-examination, in my view, the accuracy of his account as to what he generally can and cannot do comes into question.
246 Clearly, the medical evidence is uncontroversial and totally supportive of the plaintiff’s case. Whilst the plaintiff told various medico-legal examiners that he had returned to limited bike riding, he did not tell them of his involvement in more arduous riding.
247 I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
248 Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
249 In these circumstances, I am unable to accept the plaintiff’s evidence that he is in constant pain and that he experiences the problems he describes.
250 I do not accept that with a level of pain and restriction that would cause him problems doing gardening tasks or helping his wife with the vacuuming at home, the plaintiff would be able to ride as he does on a weekly basis, keeping up with the group when he rides with them, let alone compete in the ‘Around the Bay’ and mountain rides.
251 I find it difficult to accept that the plaintiff would have problems sitting in a car for a sustained period of time, yet be able to ride, often on steep terrain, for up to two and a half hours as he described on the Mt Buller ride.
252 If the plaintiff is “shattered” by the flat bay rides of 40 kilograms or so, I do not accept that he would even contemplate the mountain rides, let alone complete them, albeit slowly.
253 Whilst it was conceded by counsel for the defendant that the plaintiff has significant and considerable problems with his hip, I accept the submission that such problems do not meet the statutory test of “serious”.
254 Whilst the plaintiff is unable to play squash and run to any extent since the accident, he is clearly capable of riding significant distances, including over difficult terrain. That ability casts doubt over the extent to which his participation and enjoyment of daily activities is compromised by his pelvis/hip injury.
255 Whilst I accept his condition is long term, I am not satisfied that the plaintiff suffers osteoarthritis or will have a problems in this regard in the future. Mr Dooley considered the chances of developing significant osteoarthritic changes in the right hip in time is low. Mr Sim thought that further deterioration was not likely to occur but may occur. In Mr King’s view, there was a possibility, not probability, that secondary osteoarthritic changes in the right hip joint may progress to the stage of eventually requiring a total hip replacement in fifteen to twenty years.
256 There is no need for further treatment save for continuing with a self-managed exercise and fitness program as suggested by Mr Dooley.
257 Whilst I am permitted to take into account the stress and anxiety the plaintiff has experienced as a result of his injury and restrictions (see Richards v Wylie (supra)) - for which he has undergone counselling, I am not satisfied that this expected psychological reaction, together with the other consequences I accept the plaintiff suffers, constitute a serious injury.
258 Accordingly, the plaintiff’s application is dismissed.
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