Price v Transport Accident Commission
[2021] VCC 661
•1 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03812
| ALEXANDER JOHN PRICE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 May 2021 | |
DATE OF JUDGMENT: | 1 June 2021 | |
CASE MAY BE CITED AS: | Price v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 661 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident – serious injury - injury to the spine - credit – video surveillance - impaired consequences.
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Siddel-Whipp v Transport Accident Commission [2019] VCC 1303
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Mr B Johnson | Kenyon Legal |
| For the Defendant | Mr S A Smith QC with Ms D Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1This is a “serious injury” application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”). The application proceeded in the “usual way”, that is, that the plaintiff gave evidence-in-chief via affidavits sworn by him and was then cross-examined as to the contents of his affidavits. The plaintiff’s evidence was commenced via “Zoom” but due to technical difficulties, his oral evidence was completed in a physical court room, before closing submissions were delivered via “Zoom”. The parties otherwise tendered various medical reports and other material, including video surveillance of the plaintiff that the defendant had obtained. Mr A Macnab and Mr B Johnson of counsel appeared on behalf of the plaintiff. Mr S Smith QC and Ms D Manova of counsel appeared on behalf of the defendant.
2The plaintiff claims to have suffered a serious “long-term impairment or long-term loss of body function” within the meaning of s93 of the Act by way of injury to the spine.
3The principles in respect to serious injury applications are well known and understood. There is nothing particularly novel about this application.
Credit, causation and consequences
4It was said to me once by senior counsel[1] that “serious injury” applications often raise for consideration one or the other of the “three cs”, namely either causation, credit or consequences.
[1] Not in this application and not counsel who appeared in this application
5In this application, causation is not in issue, but credit and consequences are very much in issue.
6The plaintiff is now forty-five years of age. He was born in the United Kingdom and after completing his schooling, trained to become a chef. He has had other employments, but mostly worked as a chef. Since 2005, he has lived and worked in Melbourne, initially as a chef, and then taught cooking. The evidence is unclear whether those were full-time, part-time or even causal employments. During 2014, his mother passed away and he took time out from the workforce.[2]
[2] Plaintiff Court Book (“PCB”) 2 paragraph 7
7The plaintiff provided a summary of taxation returns[3] that reveal he earnt $7,735 gross in the financial year ended 30 June 2015 and had no earnings in the 2016 financial year. It appears he was unemployed for some time before he obtained a teaching job at Assumption College in August 2017.[4] That was a permanent part-time teaching position equivalent to 28.5 hours per week or 0.75 FTE.
[3] PCB 184
[4] PCB 177
The accident and injury to the spine
8The plaintiff was involved in a motor vehicle accident on 4 June 2018 on the Northern Highway at Kilmore (“the accident”). It was an accident of some force, in which his vehicle collided with a vehicle that had failed to give way in a 100 kmph zone. Following the accident, he developed pain in his back. He attended St Vincent’s Hospital and had various radiological investigations, including a CT scan, which revealed, amongst other things, a right transverse process fracture at L2, minimally displaced, an old non-united fracture of the tip of the T2 spinous process and fractures of several ribs.[5]
[5] PCB 130
9The defendant accepts that the plaintiff was involved in the accident and suffered injury to his spine. In that sense, causation is not in issue.
The issue of credit
10In respect to the credit of the plaintiff, the defendant submitted that he is an entirely unreliable witness. Therefore, the Court cannot be satisfied about the seriousness of the consequences to him and, accordingly, the application should be dismissed.[6]
[6] Transcript (“T”) 84
11The plaintiff accepted that the video surveillance showed a level of activity over and above what is stated in the affidavit material and that his credit is a relevant issue to the determination of this application. However, the plaintiff’s counsel submitted that it is “a matter of degree” and that the issue of his credit was “not fatal” to the application.[7] He submits that there is plenty of other evidence, as well as some reliable evidence from him, for the Court to be satisfied that the seriousness of the consequences to him meet the “very considerable” test.
[7] T96 Lines (“L”) 22-26
Credit – the disconnect
12As has been said many times in these types of applications, the credit of the plaintiff is often critically important to the resolution of the application.[8] That is even more so in circumstances where an acceptance, or otherwise, of subjective complaints of pain and restrictions is necessary in order to make a finding of “seriousness”, and of where the plaintiff’s case fits into the range of possible impairments or losses, both in respect to the claims that come before the Court and those that do not.
[8]Siddel-Whipp v Transport Accident Commission [2019] VCC 1303
13The plaintiff swore four affidavits for this application. The defendant cross-examined the plaintiff as to his reliability regarding much of the evidence contained in his affidavits. He accepted there is a “disconnect”[9] between the video surveillance and the evidence in his affidavits, particularly in respect to his past psychiatric history/treatment and in respect to his claimed physical restrictions, mainly in respect to the right shoulder.[10] He accepted that he overstated certain restrictions, left out relevant matters, and that his affidavit evidence was not accurate in respect to some factual issues in dispute.
[9] T96, L9-13
[10]The plaintiff did not persist with a “serious injury” application for the right shoulder, but the defendant highlighted the evidence in affidavits regarding the right shoulder to highlight the credit of the plaintiff in a general sense
The video surveillance
14The defendant tendered and played video surveillance obtained of the plaintiff[11] in February and March 2021. As indicated to the plaintiff’s counsel, taken in isolation, the video perhaps can be said to be remarkable for being unremarkable. It shows a man able to mow the lawn, sweep the footpath, garden, load a car to go camping, carry a watering can and perform similar activity without any obvious restriction. He appeared in the video to be able to bend, twist and lift without any restriction. He was able to use, at different times, either his right arm by itself or his left arm by itself, to perform some of those activities.
[11]Exhibit D1
15But in this application the video surveillance cannot be seen in isolation and needs to be compared with the plaintiff’s affidavit evidence. There is a difference between the evidence he gives in his affidavits as to his physical restrictions and what is revealed by the video surveillance, namely a lack of any apparent restriction of movement of the back or right shoulder. Some examples (there are others that I shall discuss in due course) of the “disconnect” between the affidavits and the video surveillance (and the oral evidence) are as follows –
(a) his description of right shoulder stiffness;[12]
(b) the claimed restrictions for bending or twisting of his spine and the avoidance of such activities;[13]
(c)the claim that doing anything with his right arm causes pain;[14] and
(d)the claimed inability to go canoeing.[15]
[12] PCB 5, paragraph 20; PCB 10, paragraph 6; PCB 11, paragraph 11
[13] PCB 5, paragraph 22; PCB 12, paragraph 15
[14] PCB 6, paragraph 26
[15] PCB 7, paragraph 36
16In closing submission, the plaintiff acknowledged that in order for this application to succeed, the Court “has to accept what he says about the pain that he has in his back and that that gives rise to activity restrictions and that he’s had to modify his work activities and his social, domestic and recreational activities”.[16]
[16] T99, L28-31; T100, L1-2
17The cross-examination and video surveillance demonstrated the plaintiff to be an unreliable witness. His first affidavit exaggerates his restrictions and fails to mention (or minimises) comorbid conditions that have afflicted him. The three other affidavits are largely directed to correct or to fill in gaps from the first affidavit, but even so, his affidavits collectively do not accurately deal with several relevant matters. He is an unreliable witness.
18However, I do not go so far as to find the plaintiff’s credit has been impugned to a point where it simply means this application must fail.
19In deciding this application, I must take into account the whole of the evidence, but in doing so, I approach that task on the basis that unless there is objective corroboration for the evidence of the plaintiff on issues in dispute, then I am unable to accept his evidence.
20Accordingly, that brings me to a consideration of the whole of the evidence.
The prior medical history
21Before embarking on an analysis of the objective evidence, and to put the evidence of impairment and impairment consequences into context, it is necessary to analyse some of the evidence regarding the plaintiff’s situation before the accident.
22In his first affidavit, the plaintiff sets out that in 2016,[17] he obtained employment at Assumption College. He was contracted to work a 0.75 fraction of a full-time load. His employment was to teach cooking and run a restaurant as part of a catering course offered to students at Assumption College.
[17] This date is wrong; he started at Assumption College on 21 August 2017
23The plaintiff’s employment at Assumption College came about at a time after he had undergone surgery for a brain aneurysm. In his first affidavit, he says:
“… I had surgery involving one stent on the left side in 2016 at the Alfred Hospital. The other aneurysm, I was told, did not require surgery and that I would just simply have to keep an eye on it.”[18]
[18]PCB 3, paragraph 9
24The evidence contained in clinical records indicates that the plaintiff’s aneurysms had a much greater impact on him than as set out in his affidavit. He has a significant family history of subarachnoid haemorrhage and intracranial aneurysms.[19] For treatment for aneurysms, the plaintiff came under the care of Dr Carlos Chung, neurosurgeon.[20] The reporting of Dr Chung indicates that the plaintiff’s aneurysms were a source of considerable concern to him. Active treatment involved the insertion of a flow-diverting stent to manage a left-sided intracranial aneurysm. But, after that procedure, Dr Chung, on 1 February 2017,[21] described the aneurysms as likely to be low risk.
[19]Defendant’s Court Book (“DCB”) 27
[20]DCB 27ꟷ31
[21]DCB 30
25Notwithstanding the treatment and the opinion of Dr Chung, the aneurysms gave the plaintiff cause for ongoing concern, even after the stent was inserted. From late 2016, the plaintiff came under the care of Dr David Morrell, clinical psychologist, for ongoing psychological concerns related to the risk to his health from the aneurysms. In January 2017, Dr Morrell wrote to the plaintiff’s treating general practitioner, noting there was then a return to work for two days a week and that he had struggled with ongoing employment since February 2016.[22] By August 2017, Dr Morrell described the plaintiff’s mood as stable. At review in December 2017, Dr Morrell noted the plaintiff was then in a position whereby a referral to a psychiatrist might be useful.[23] The treating general practitioner, Dr Ghassan Markabawi, then referred the plaintiff to a psychiatrist, Dr Jagadeesh Herur, in December 2017.[24] The plaintiff attended Dr Herur in March 2018.[25] Medication (duloxetine) was recommended by Dr Herur, together with ongoing psychological counselling.
[22]DCB 33
[23]DCB 36
[24]DCB 37
[25]DCB 39
26The objective evidence is at odds with what the plaintiff said about pre-existing psychological issues in his first affidavit, namely that:
“I suffered depression, anxiety and stress and had relationship issues in or about 2011 and 2012 and consulted a psychologist, Dr David Morell in that time. I was prescribed an antidepressant by my general practitioner but I only took it for a few weeks and then my psychological symptoms improved.”[26]
[26]PCB 3, paragraph 10
27Next, the plaintiff was cross-examined about working a 0.75 time equivalent workload at Assumption College. He was asked why he did not go to a full-time load before the accident. He gave evidence consistent with that recorded by Dr Morrell, namely:
“Um, because I had, um, appointments with specialists about my aneurysms. So I felt it was necessary.”[27]
[27]T66, L18-20
28The objective evidence leads to the conclusion that the plaintiff had limited himself to a 0.75 workload because of ongoing specialist appointments and issues related to the aneurysms and treatment. The objective evidence discloses psychological disturbance and that he was not working full time before the accident because of issues related to the aneurysms and treatment. The true objective pre-accident picture is different to the picture painted in the affidavits.
Post Accident – the evidence from treating practitioners
29Dealing next with the medical evidence from treating health practitioners in respect to injury and consequences after the accident.
30Following the accident, the plaintiff attended Dr Markabawi for symptoms in his lower back. In July 2018, he was referred for hydrotherapy for his lower back injury for what the doctor described as “fractured vertebras”.[28] In a letter written to the plaintiff’s solicitors on 13 March 2020,[29] the doctor noted that the plaintiff had not recovered from his car accident injuries yet and was still getting recurrent spinal pain affecting his mobility, and he could not do pre-injury exercises, including lifting, pushing and pulling. The doctor opined that the plaintiff needed to continue exercises for a further twelve months and regular physiotherapy for the next twelve weeks.
[28]PCB 34
[29]PCB 68
31Next, by report dated 8 January 2021,[30] Dr Markabawi opined that the plaintiff’s physical condition was still the same. He had not been able to return to some pre-injury activity (playing soccer, rock climbing and not able to lift weights), but was able to resume his work as a teacher, with some restriction on doing some activities. Dr Markabawi said that ongoing conservative treatment was recommended to “keep his physical condition improving and stable”.
[30]PCB 75
32The plaintiff has had conservative treatment by way of physiotherapy with several physiotherapists. He first attended for physiotherapy with Mr Zach Clark. In a report dated 6 March 2019,[31] Mr Clark said that the plaintiff had “made gradual and significant progress in returning to his previous level of function from cooking and caring for himself to his role as a culinary teacher” [32] and that his condition had improved and was starting to stabilise, with scope for further improvement.
[31]PCB 43
[32]PCB 44
33The plaintiff then transferred to Mr Lawrence Vella, physiotherapist, from approximately mid-2019. The initial reporting from Mr Vella is mainly about the justification for ongoing treatment. By letter dated 11 December 2019, Mr Vella first reported about the plaintiff’s need for ongoing physiotherapy treatment.[33] Then, by letter dated 4 March 2020, he discussed a further re-evaluation of ongoing physiotherapy.[34] Those letters are otherwise not particularly informative as to impairment or impairment consequences.
[33]PCB 52
[34]PCB 53
34The plaintiff’s physiotherapy treatment next transferred to Mr Suresh Takyar from 2 March 2020. In a report dated 4 March 2020,[35] he noted that the plaintiff had pain and stiffness of the right shoulder and persistent pain in the lower back with stiffness.[36] Mr Takyar stated that the plaintiff’s right shoulder symptoms were aggravated with increased physical activity and that the plaintiff had difficulty performing day-to-day and recreational activities.[37] A significant part of that report is otherwise commentary directed to why the Transport Accident Commission’s (“TAC”) decision to deny physiotherapy treatment was unreasonable.
[35]PCB 54
[36]This is to be contrasted with the video surveillance, which did not demonstrate any stiffness
[37]Again, this is inconsistent with the video surveillance
35It appears that in late 2020, the plaintiff returned to Mr Vella for treatment. Mr Vella provided a further report dated 31 December 2020 to the plaintiff’s solicitors,[38] in which he noted the plaintiff had five physiotherapy treatments before COVID-19 limited access (probably with Mr Takyar), simultaneously with TAC ceasing funding. The plaintiff then had a treatment plan and used five physiotherapy consultations between late November and December 2020. Complaints of ongoing pain and discomfort with the shoulders, upper back, right arm and lower back were noted, and that physiotherapy treatment provided symptomatic relief.
[38]PCB 74
36That is the extent of the relevant material from treating health practitioners (other than psychologists). In respect to self-reported restrictions, ongoing physiotherapy has been recommended, but seemingly the plaintiff is able to cope with limited ongoing physiotherapy interventions and self-maintenance strategies.[39]
[39] PCB 74
The use of medication
37Apart from physiotherapy, the only other formal “treatment” that the plaintiff requires is pain medication. There is no objective evidence of any recent prescription for pain medication. In his affidavit sworn 30 March 2021, the plaintiff said that he used Maxigesic and Tramadol for pain, as well as over-the-counter medication. He said that he sees his general practitioner about once per month, mainly for medication,[40] but there is nothing from the treating general practitioner to confirm that evidence. In a further affidavit sworn 5 May 2021,[41] he said that he continues to use Maxigesic or Tramadol on a daily basis, predominantly for lower back pain, but also for the neck and right shoulder. In the referral letter of 13 July 2018, Dr Markabawi noted prescription of painkillers, including Maxigesic, but the doctor does not mention ongoing prescriptions in the later reports.
[40]PCB 15
[41]PCB 188
38However, despite a vigorous credit attack, on the issue of the ongoing use of medication, the defendant did not dispute the use of medication.
39Instead, the defendant’s submission is that the use of medication is “more towards the modest end of the scale”.[42] I accept that submission. While there is evidence of the ongoing use of pain medication to manage symptoms in the plaintiff’s spine,[43] the evidence of the use of medication is not such so as to suggest a “very considerable” consequence in the absence of other reliable evidence as to the seriousness of the consequences to the plaintiff.
[42]T95, L14-15
[43] The evidence of the exact type, amount and frequency of use of such medication is a little unclear
The summary so far
40To summarise the story so far, the plaintiff had a range of health issues before the accident, and the evidence is that his aneurysms and related psychological condition saw him limit his hours of work at Assumption College, keeping in mind that it is unclear when he, in fact, last worked full time. The evidence of the treaters supports the conclusion that the accident caused injury to the spine, with some ongoing objective complaints of pain and restrictions, for which he has required physiotherapy, self-management and the use of painkilling medication.
Post accident – the evidence in medico-legal reports
41Turning next to the evidence in the medico-legal reports.
42The plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, on 13 January 2021. Mr Miller then provided a report to the plaintiff’s solicitors dated 18 January 2021. Mr Miller records a presenting history of “widespread, diffuse, and intermittently severe symptoms”.[44] After conducting a physical examination and review of radiology, and taking into account the history given to him, Mr Miller opined that the plaintiff had suffered injury to the cervicothoracic and lumbar spine which –
“… includes Musculo-ligamentous strain, aggravation of degenerative disease, and structural injury in the lumbar spine in the form of fracture of the right transverse process of L2 and also probable pre-existing spondylolisthesis … .”[45]
[44]PCB 105
[45]PCB 108
43Mr Miller also said that the described injury was associated with the “development of a chronic pain syndrome”, and that the overall prognosis was “fair”.[46] He described ongoing right rotator cuff dysfunction and a mental state reaction. In respect to treatment, Mr Miller said that the plaintiff may benefit from surgical intervention to the spine and arthroscopic assessment of the right shoulder.[47] He opined that the plaintiff would have difficulty with work that involved repetitive bending, lifting, or lifting weights more than 5 kilograms and a need to change posture on a regular basis. He noted ongoing restrictions for day-to-day activity.
[46]PCB 108
[47]PCB 109
44Mr Miller provided a further report dated 3 May 2021, having viewed the video surveillance (including surveillance not played or tendered to the Court) and social media search results. He then said: “On the information available this has not caused me to alter the findings or conclusions previously expressed.”[48]
[48]PCB 125
45Mr Ash Moaveni, orthopaedic surgeon, examined the plaintiff on 4 February 2021 at the request of his solicitors. In a report dated the same day, he obtained a history that the plaintiff experienced ongoing mid to lower back, neck and right shoulder pain, made worse by repetitive movements.[49] He obtained a history that the plaintiff had tightness and restriction of movement in the neck and upper back, together with pain, stiffness and achiness in the right shoulder, which was worsened by activities or movements that are repetitive in nature.
[49]PCB 120
46Mr Moaveni opined that the plaintiff had suffered injury to the cervical spine, right shoulder and to his mid and lower back, with the documented injuries including “fracture of the T2 spinal process, fracture of the L2 transverse process and subacromial bursitis right shoulder”.[50]
[50]PCB 123
47Mr Moaveni said that the plaintiff will be limited in standing, sitting, pulling, pushing, reaching, repetitive activities and lifting. Specifically in respect to the right shoulder, he opined that the plaintiff “will be limited in pulling, pushing, lifting, loading, repetitive activities, reaching and overhead activities”.[51]
[51]PCB 124
48Mr Moaveni describes himself in his reports as an orthopaedic surgeon with expertise in the shoulder, elbow and wrist. Consistent with that described expertise, the thrust of his report is directed towards the plaintiff’s claimed right shoulder injury, which no longer forms part of this application.
49In a supplementary report dated 4 May 2021, Mr Moaveni commented on the video surveillance. He said: “In my opinion, the surveillance reports and social media search results are consistent with my initial medico-legal report.”[52] He said that after “reading the surveillance report and observing the video footage, this has not impacted my original conclusions”.[53]
[52]PCB 128
[53]PCB 129
50Next, the plaintiff was seen for medico-legal purposes by Dr Peter Wilde, orthopaedic surgeon, at the request of the defendant. He examined the plaintiff on 13 April 2021 and provided a report dated 21 April 2021.[54] In that report, Dr Wilde obtained a history of current symptoms as follows:
“His main complaint presently is persistent back pain which starts in the mid to lower back and extends into the right gluteal. He says the pain is always there, on a good day 5/10 and on a bad day 8/10. It is worse with physical exertion such as bending, lifting and twisting. If he sits for more than two hours it makes the pain worse. At work he has a sit-stand desk which he finds particularly helpful.
Regarding the neck, the pain is not quite so bad perhaps 4 to 5/10. It is in the right paraspinal region and it restricts his neck movements and often wakes him at night. This pain seems to merge with pain in the right shoulder which he rates more severely at 5 to 8/10. If he lies on the right shoulder at night it wakes him. As a result he sleeps very poorly, waking two or three times every night. He has difficulty reaching up to high shelves which is a problem for a chef as pots and pans are often in cupboards and shelves. He has difficulty brushing his hair and doing his teeth. These activities cause extra pain in the shoulder. He does not complain of neurovascular symptoms in the arms or legs.”
[54]DCB 5
51Dr Wilde reviewed the radiology and conducted a physical examination. He then expressed the opinion that the plaintiff had suffered aggravation of cervical spondylosis, soft-tissue injury to the right shoulder and soft-tissue injury to the low back, as well as the fractures revealed on the imaging.[55]
[55]DCB 10
52In respect to prognosis, Dr Wilde said:
“The prognosis for the cervical spine is good as I expect he will make a full recovery in the longer term. Similarly the prognosis for the right shoulder is good but he might benefit from a subacromial injection of local anaesthetic and steroids and an assessment by an orthopaedic shoulder surgeon.
Regarding the low back, he is likely to continue to experience back pain and restricted movements in the foreseeable future and these symptoms will probably continue in the longer term. He will have to learn to self-manage these symptoms.”[56]
[56]DCB 10
53Dr Wilde said that the symptoms would interfere with the plaintiff’s ability to work full time as a hands-on chef, but that he could return to the pre-injury duties and hours notwithstanding the injury. He said:
“The effect on Mr Price’s domestic and leisure activities are mild, principally affecting his ability to do heavy tasks in the garden or other chores such as maintenance and repairs at home.”[57]
[57]DCB 11
54That is the extent of the medico-legal material. The opinions expressed by the relevant medico-legal examiners are consistent in respect to the diagnosis and prognosis of the plaintiff’s injury to the spine.
55Dr Wilde did not have the benefit of the video surveillance, but that does not detract much from his report in my opinion. His recorded physical examination is similar to what was revealed in the video, particularly as his clinical examination failed to detect any restriction of movement of the right shoulder.
56Of course, Mr Miller and Mr Moaveni did have the video surveillance and, having viewed it, they did not change their opinion. Mr Moaveni’s material is not particularly useful for this application, as he is mostly concerned with the plaintiff’s right shoulder. Mr Miller’s opinion is of assistance. He did find some limited reduction in the range of motion in the spine and right shoulder. Obviously a number of his comments about capacity for work and restrictions to day-to-day activity are based on the reliability of what he had been told by the plaintiff, which did include the serious injury affidavit. Mr Miller does not comment upon, what, if any, inconsistency there is in the affidavit as compared to the video, and that does impact, to some limited extent, on the weight I attach to his opinion, and in particular, to his opinion that the plaintiff might require surgery. I prefer the opinion of Dr Wilde, which is consistent with the balance of the medical evidence that, in respect to injury to the back, the plaintiff “will have to learn to self-manage these symptoms” and that there are “no operative treatments required for the spine”.[58]
[58]DCB 10
57In any event, ultimately there is little difference between the opinions of Dr Wilde and Mr Miller (leaving to one side the issue of possible surgery to the spine). Mr Miller expresses the opinion that the plaintiff will have difficulty with work (and leisure activities) that requires “repetitive bending, repetitive lifting, lifting of weights of more than 5 kilograms, and … a requirement to shift his posture on a regular basis”.[59] With those restrictions, Mr Miller does not suggest a reduction in hours of work. Similarly, Dr Wilde does not place a limit on the hours of work.
[59]PCB 109
58Accordingly, the totality of the medical evidence, including the evidence in medico-legal reports, supports a finding of an ongoing problem in the spine with a requirement for ongoing conservative treatment. Bearing in mind that the self-reported restrictions to the doctors need to be approached through the prism of the reliability of the plaintiff, I accept that the conclusions expressed by medico-legal examiners about the injury, as diagnosed, does cause ongoing impairment and impairment consequences to the plaintiff.
Are the impairment consequences “serious”?
59Turning now to the remaining issues, namely whether the plaintiff has, on the whole of the evidence, demonstrated a “very considerable” consequence, either in respect to pain and suffering or economic loss, whether approached individually or in combination. This analysis requires a return to the issue of the plaintiff’s pre-injury employment and what he did about that after the accident.
60After the accident, he was able to return to his pre-injury hours. The plaintiff’s evidence is that he had difficulty with his pre-injury hours and duties. In support of that claim, he relies on an affidavit and statement of Mr Peter Siebel.[60] Mr Siebel is described as a teacher and restaurant manager at Assumption College who worked with the plaintiff, although Mr Siebel does not say when he in fact first worked with the plaintiff. In the letter of 31 March 2021 exhibited to his affidavit,[61] Mr Siebel says the plaintiff used a pull-along trolley to move his school resources, books, laptop, class equipment et cetera. He notes the plaintiff uses a four-wheel trolley to move numerous and heavy items around the kitchen. He says that he often gives assistance and he had witnessed the plaintiff ask others for assistance when he has needed help to lift items and heavy items that he would ordinarily be able to lift himself. He says:
“I have noted on occasions that Alex has been in pain with his back from performing his restaurant duties and have also been aware that he takes pain-killers to assist him the day after a long restaurant service. I am also aware that Alex has been required to take leave of absence from school because of pain caused by this.”[62]
[60]PCB 194
[61]PCB 196
[62]PCB 196
61However, some of Mr Siebel’s evidence is vague and not particularly informative. For example he does not specifically state that the plaintiff used the four-wheel trolley because of the back injury. He does not actually state that he is aware of the plaintiff’s accident or how the plaintiff coped with his work duties before the accident. He does not deal with the restructure at work. But overall I accept he does provide some support for the proposition that the plaintiff had to modify his work duties, and required some assistance, including painkillers, to remain at work.
62The plaintiff also relies on an affidavit of his partner, Ms Kate Mangano.[63] Ms Mangano’s affidavit is supportive of the plaintiff’s claim for serious injury. She did not know the plaintiff until she commenced sharing a house and then commenced a relationship with him in approximately February 2020. Her affidavit describes her observation of restrictions that the plaintiff now has. Some of her evidence is clearly hearsay and some is of less weight because she cannot comment about his life before the accident. But her evidence is supportive of the plaintiff having ongoing symptoms, restrictions and having had to modify how he engages in a range of day-to-day activity.
[63]PCB 190
Why did the Plaintiff leave Assumption College?
63As mentioned, I accept that the plaintiff suffered an injury to his back and has had ongoing fluctuating pain with difficulty with the restricted suggestions such as suggested by Mr Miller,[64] namely repetitive bending, lifting and lifting of moderately heavy weights more than 5 kilograms. I also accept that those restrictions translated into a need to modify some aspects of his work at Assumption College, as set out in his affidavit material,[65] as corroborated by Mr Siebel[66] and Ms Mangano.[67]
[64]PCB 109
[65]PCB 14
[66]PCB 194
[67]PCB 190
64But, equally, the plaintiff continued on at Assumption College working his pre-injury hours until he resigned that employment on a date seemingly shortly prior to 30 March 2021. In his affidavits, the plaintiff said, in respect to his resignation, that:
“... frequently felt guilty that I ask others to do work for me that I should be capable of doing myself. Eventually I think this led to the situation where I lost my job.”[68]
[68]PCB 14
65He was more expansive in his third affidavit. He said:
“I refer to paragraphs 7 - 8, and 27 of my affidavit dated 30 March 2021. When I was working at Assumption College following the motor vehicle accident, I found that sitting for long periods or performing tasks in which I was required to stand and lean forward for extended periods worsened the pain I experienced in my lower back. The changes that were being proposed at work were part of a restructure of my role which involved taking away four periods per week of planning for the restaurant teaching I performed, and exchanging this with four periods of face-to-face contact teaching. In addition, I would be responsible for preparing two additional lessons that would be taught by a casual relief teacher (CRT) on my behalf, however I would then be responsible for administration and marking that work and giving it back to students. As a result, the hours required for sitting to complete this work, either writing or typing on a computer (outside of normal school hours), would have increased by at least five hours per week in additional to what was already expected and when I was already struggling to cope with the work I was performing. As a result I felt I had no option but to resign my employment, but loved my job and the work that I did with the students.”[69]
[69]PCB 185-186
66The plaintiff’s affidavit material paints a picture of a man struggling at work and being forced to give up that work because of his injuries.
67The plaintiff was cross-examined about the reason he left Assumption College. He gave evidence that there was a restructure, but he never attempted the restructured role.[70] In respect to the restructure, I asked him in what way it was going to be different to his previous employment at Assumption College. In response to questions, the plaintiff said as follows:
[70]T67, L3
A:“Um, they wanted to take away four periods of planning and preparation time that they gave me to run the school restaurant, which was open to the public, and replace those four periods with four periods of face-to-face teaching.
Q:So take away four periods of planning for the restaurant - the school ‑ ‑ ‑ ?‑‑‑
A:And preparation for ‑ ‑ ‑
Q: And preparation?‑‑‑
A:Yep, for - for teaching VET Hospitality, kitchen operations to year 12 students.
Q: And replace it with face-to-face teaching?‑‑‑
A: Yep, of a year - another year 7 class and a year 11 class VCE.
Q:So, just help me out. Is that face-to-face teaching in a kitchen or in a classroom?‑‑‑
A:In a food technology kitchen/classroom.”[71]
[71]T67, L19 ꟷ T68, L1
68This was explored further in re-examination as follows:
Q:“You’ve told His Honour that there was the restructure to the role and your job at Assumption?‑‑‑
A:Yes.
Q:And that was going to result in you having to do more face to face teaching with which years was it?‑‑‑
A:It was an additional Year 7 class and an additional Year 11 VCE class.
Q: And did that cause you any concern?‑‑‑
A: A lot of concern.
Q: Why was that?‑‑‑
A:Um, because for every hour of face to face teaching, it’s said and my experience suggests to me that an additional hour is required out of school to plan, prepare, mark, complete the admin that's required to teach one hour of face to face.
Q:So what impact was that extra hour of preparation for each hour of teaching going to have on you?‑‑‑
A:It would’ve meant an extra - at least an extra five to six hours of desk work at home per week, which I didn’t believe I was up to managing that kind of sitting down.
Q:And why was that? Why wouldn’t you be able to manage sitting down at a desk type work?‑‑‑
A:Because of the pain in my back and neck.
Q:All right. And there was an issue with the planning and preparation being taken away from the work that you had to do in the restaurant, is that right?‑‑‑
A:Yes.
Q: Do I understand that correctly?‑‑‑
A:It's difficult to explain, it was difficult to explain to the union when they came in to try and moderate with the school. Um, it’s a unique teaching role that I do because I teach pre-apprenticeship courses and I run a restaurant that's open to the public. The students have to cook food for, um, the public, paying customers. And food just doesn’t appear. You need a certain amount of time to be able to prepare and set the students up to be able to succeed. They still wanted me to complete that work but they also wanted me to take on and cover for a teacher who was leaving on maternity leave and that was the additional Year 7 and Year 11 class that they wanted to add to my existing role.
Q:All right. And what was your concern about that?‑‑‑
A:That it would just cause too much pain to my back and neck.”
HIS HONOUR:
Q:“This is probably obvious, Mr Macnab, but - so I’m sorry to interrupt, but does that mean they wanted you to go fulltime rather than 0.72 or 0.75?‑‑‑
A:No, they wanted to keep me - they wanted to take away the preparation and keep me on the same fulltime equivalent. They have asked me to go fulltime but I didn't think it was possible either.”
MR MACNAB:
Q:“So they wanted to pay you for the three quarter rate, is that right?‑‑‑
A:Yes.
Q:And what was going to happen with the preparation that was going to be required to run the restaurant?‑‑‑
A:Ah, they thought I could fit that in as well. I - I can only assume that.
Q: Well, would you have been able to fit it in?‑‑‑
A: I don’t believe so, no.
Q:And why is that?‑‑‑
A:Because I would’ve been, um, teaching face to face at least three periods a day plus yard duties and on one day I would've been teaching four periods plus planning and preparing for two other periods. So ultimately six periods a day of planning and preparation and marking in a day that is only four periods allocated.”[72]
[72]T72, L1 ꟷ T73, L28
69The medical evidence, as already discussed, supports the proposition that the plaintiff had – and still has – the physical capacity for the hours and duties that he was performing before the restructure at Assumption College. The plaintiff did not seek medical advice before leaving Assumption College. The oral evidence, as set out, supports the conclusion that he left Assumption College for reasons unrelated to his back injury but rather related to the extra workload that he perceived the restructure would place on him.
70I accept that the plaintiff, to some limited extent, modified his work duties after the accident, such as seeking assistance from colleagues for the heavier tasks. But equally, he was mostly able to perform his pre-injury duties and hours. I do not accept that he gave up the job at Assumption College because of his back injury.
71An expression of an ultimate conclusion about work capacity is made more difficult in this application because, shortly prior to the hearing, the plaintiff accepted a job as a cook at a retirement village.[73] Apparently he had accepted a position to work two days a week. In fact, he had only completed a trial of that job the Thursday before this matter proceeded to hearing.[74] He gave oral evidence that the new job requires him to prepare and cook meals for twenty or so residents during an eight-hour shift.[75] The limited evidence is that the plaintiff has been successful in completing that trial and likely to secure that job on an ongoing basis. There is no evidence about the prospect of more hours at the retirement village and there is no medical evidence specifically dealing with his capacity to perform that job, save for the evidence in particular of Mr Miller and Dr Wilde that I have already discussed.
[73]PCB 186
[74]T71, L13
[75]T68
72All that can be said, based on the evidence, is that after leaving Assumption College, the plaintiff’s back injury did not prevent him from securing and commencing a new job. That job is as a cook and requires him to work an eight-hour shift in what sounds, on the face of it, to be a more physically-demanding job than that which he was performing at Assumption College.
73Accordingly, I do not accept that the plaintiff’s back injury caused him to leave his pre-accident job at Assumption College, or has prevented him from finding other employment. I accept, however, that he had to make some limited modifications to some aspects of his pre-injury employment and employment as a chef.
What restrictions are there for recreational activities?
74In his first affidavit,[76] the plaintiff describes restriction for activities such as rock climbing, housework, playing soccer and driving. In his further affidavit, he expands on those restrictions to include sleep, dressing, golf, scuba diving, cycling, birdwatching and his personal relationship with his partner.[77] However, an immediate difficulty is that those restrictions are said to relate, in part, to his back injury and, in part, to the right shoulder injury, which is not now relied on.
[76]PCB 6
[77]PCB 12-15
75In his third affidavit, the plaintiff again deals with restrictions for social and recreational activities, in particular dealing with his restriction for rock climbing, which he describes as “an absolute passion” of his.[78]
[78]PCB 187
76The first thing that needs to be said is that the restrictions described by the plaintiff do not fit comfortably with the video surveillance. Notwithstanding what he has asserted in his affidavits, such as increased back pain from tasks such as sweeping,[79] the video demonstrates that he is able to perform such activity, apparently without any restriction. But once again, the further (third) affidavit of the plaintiff tends to lump together restrictions caused by the back with the restrictions caused by the right shoulder. As an example, in that affidavit the plaintiff describes the purchase of a canoe and a trip that he had planned, but which he would not now attempt “due to the restrictions from my lower back, neck and right shoulder injuries”.[80]
[79]PCB 186
[80]PCB 188
77It is trite to note that the onus is on the plaintiff to establish the impairment and impairment consequences from the claimed compensable injury. In the affidavits, the right shoulder is frequently mentioned as a cause of restriction for day-to-day activity. In that sense, there is no attempt to identify restrictions referable to the lower back condition as opposed to those referable to the right shoulder.
78The plaintiff spent some time in his affidavits and oral evidence discussing his hobby of rock climbing. The thrust of his evidence is that he used to be a very good rock climber. He has attempted to climb at an indoor rock climbing centre since the accident, but at a lower level and with much difficulty.[81] He did, however, accept in cross-examination that he would need good use of the back, arms and legs to rock climb.[82]
[81]T60-61
[82]T61, L9-10
79In questions from me at the end of re-examination, the plaintiff confirmed that he is now probably climbing once a week at an indoor centre.[83] He usually goes with his partner. He gave evidence about the frequency and nature of his climbing after the surgery for the aneurysm, but before the accident, and described it as a “wonderful way to assist my mental health”.[84]
[83]T77, L2
[84]T77, L24
80In his most recent affidavit, the plaintiff again discussed his hobby of rock climbing and bouldering. To that affidavit was exhibited photographs of him engaging in such activity.[85]
[85]PCB 198
81I accept the plaintiff was a man who had a passion for rock climbing. I accept that the accident has impacted on that passion, but he has returned to rock climbing, albeit at a lower level and at an indoor facility. It is a strenuous activity, even at the lower level. Further, as already mentioned, the plaintiff implicates his right shoulder in the ongoing restriction for rock climbing and so, once again, it is impossible on the evidence to fully ascribe a restriction for rock climbing due to the back injury, other than to conclude that a bad back would not make it any easier for the plaintiff to engage in his hobby, although equally it might be thought that someone with a bad back might not now be rock climbing at all. In any event, the evidence supports a conclusion that his hobby of rock climbing is impacted to some extent by the back injury, but equally he attributes his right shoulder injury as a restriction for rock climbing.
Summary and conclusion
82The analysis of the evidence in this case must of course begin with the acknowledgement that the plaintiff has embellished his evidence in his affidavits. But as already mentioned, I do not accept the submission that his credit is so badly impugned that the case simply fails. But it does mean that his complaints of pain and claims of restrictions do need to be considered carefully by reference to the objective evidence. The clearest example of that is his assertion that he left his employment at Assumption College because of a bad back, in circumstances where the objective evidence does not support that assertion.
83Bearing in mind that he bears the evidentiary onus, the plaintiff’s evidence, when assessed together with the objective evidence, does support a conclusion that he has ongoing pain in his back due to the injury suffered in the accident.
84But, he has very little ongoing treatment for the back injury. In fact, overall has had very little treatment. I accept he may use some over-the-counter painkillers and even occasional prescription painkillers, but the use of medication is, on my assessment, at the lower end. He was able to return to his pre-injury employment and maintain that employment until he left for reasons unrelated to the back injury. He has managed to secure alternate employment. He still engages in a range of recreational and day-to-day activities. The video surveillance not only demonstrates that he has a greater physical capacity than set out in his affidavits, it also captured him packing his car for a weekend away camping with his partner, and so it is obvious that he is still able to engage in that type of activity, notwithstanding his back injury.
85A consideration of the whole of the evidence leads me to a conclusion that the plaintiff has ongoing impairment consequences from the compensable back injury that may be described as “marked” or even as “significant”, but I do not consider that the impairment consequences meet the necessary threshold of “very considerable”.
86Accordingly, the application is dismissed.
87I will hear the parties as to the question of costs.
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