Radman v Transport Accident Commission
[2024] VCC 1319
•30 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-02539
| DARKO RADMAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 May 2024 | |
DATE OF JUDGMENT: | 30 August 2024 | |
CASE MAY BE CITED AS: | Radman v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1319 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – s23A Limitation of Actions Act 1958 application
Legislation Cited: Limitation of Actions Act 1958, s23A
Cases Cited:Primary Health Care Limited v Giakalis (2013) 38 VR 165; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; De Agostino v Leatch [2011] VSC 249
Judgment: Leave to commence proceedings refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Bracken with Mr S Dawson | Angela Sdrinis Legal |
| For the Defendant | Mr J Ruskin KC with Mr S Pinkstone | Solicitors to the Transport Accident Commission |
HIS HONOUR:
1On 7 November 2003, the plaintiff, Darko Radman, was on his way to work when his stationary motor vehicle was struck by another vehicle in Ballarat Road, Footscray (“transport accident”). The impact caused his head to move sharply forward and back, and then forward and back again. He felt immediate pain in the right side of his head, his neck and his right shoulder.
2Twenty years later, Mr Radman now seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to recover damages for personal injuries for the serious long-term impairment of a body function suffered as a result of the accident. The impairment relied on is to the neck and right shoulder pursuant to sub-paragraph (a) of the definition of “serious injury”.
3It is not in dispute that the transport accident occurred, or that Mr Radman suffered a soft-tissue injury as a result of it.
4Mr Radman bears the onus of establishing that:
(a) he suffers from an ongoing compensable injury;
(b) any resulting impairment is permanent; and
(c) any injury as a result of the transport accident is a “serious injury”.
5The question of “serious injury” is determined by whether the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequence, “when judged by comparison with other cases in the range of possible impairments or losses, (can) be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[1]
[1] Humphries and Anor v Poljak (1992) 2 VR 129 at 140; see also Mobilio v Balliotis [1998] 3 VR 833
6The consequences of the claimed injury fall to be identified in the context of a very significant psychiatric work injury, which evolved over the period from early 2016 until Mr Radman ceased work on 16 August 2018.
7Mr Radman also seeks leave pursuant to s23A of the Limitation of Actions Act 1958 to extend the period within which to bring a claim for personal injuries sustained in the transport accident. The time within which to bring such a claim expired on 7 November 2009.
8The questions for the Court are:
(a) What injury(ies) did Mr Radman suffer in the transport accident?
(b) What injury did Mr Radman sustain at work in the period from 2016 to 2018 (including impairment consequences as at the date of the hearing)?
(c) What transport accident-related injury(ies) persist as at the date of the hearing?
(d) What are the impairment consequences of any ongoing compensable injury?
(e) Are the impairment consequences at least “very considerable”?
9The reliability of Mr Radman’s evidence is, of course, of great importance in an application of this kind. Mr Radman’s reliability, as opposed to his honesty, was very much in issue.
10I will consider the question of whether Mr Radman suffered a “serious injury” prior to his application for leave to commence proceedings out of time. The application pursuant to s23A of the Limitation of Actions Act 1958 need only be determined if leave is granted to recover damages under s93(4)(d) of the Act.[2]
[2]See Primary Health Care Limited v Giakalis (2013) 38 VR 165 (“Giakalis”)
Background
11Mr Radman was born in 1963 in Bosnia, where he completed an Advanced Diploma in Telecommunications. He was exposed to the horrors of the Bosnian war.
12He emigrated to Australia in 1995 as a permanent, self-funded skilled migrant, studying English for two years before completing further study at RMIT.
13In February 2000, he started work for Telstra, based in Clayton, as an internet technician with its mobile telecommunications unit. He has worked in telecommunications throughout his professional life.
14Tragically, Mr Radman’s wife passed away in 2022 following a battle with an inoperable stage-4 tumour.
The period following the November 2003 transport accident
15I accept Mr Radman’s evidence that he experienced significant pain in the right side of his neck and right shoulder immediately following the transport accident. He attended his general practitioner or regular medical clinic, Isis Primary Care, in Deer Park on 7 November 2003. The general practitioner prescribed strong pain medication; and another doctor at IPC referred him for physiotherapy on 11 November 2003.
16On 28 November 2003, Mr Radman attended Dr Jason Chan at IPC with ongoing muscle pain. Dr Chan prescribed Ducene 5mg, half a tablet daily. Ducene is a benzodiazepine used for anxiety and to relax muscles. Prior to the transport accident, Mr Radman had been prescribed Ducene for his anxiety and post-traumatic stress disorder.[3]
[3] Plaintiff’s further affidavit sworn 2 March 2023, [6]
17Mr Radman had no time off work initially, but, as his symptoms deteriorated, he had significant time off from January 2004.
18On or about 15 January 2004, he made a claim for compensation with Telstra under the Safety, Rehabilitation and Compensation Act 1988 in relation to the transport accident.[4]
[4]Plaintiff’s Court Book (“PCB”) 281
19An x-ray on 21 January 2004 of the cervical spine showed normal alignment of cervical vertebrae, with disc spaces preserved and no significant spondylitic changes or significant narrowing of the intervertebral foramina present.[5]
[5] PCB 268
20In his report dated 29 January 2004, Mr Greg Dea, physiotherapist, opined that Mr Radman was fit to continue working at his current capacity of working full-time with restrictions:
“… however he should and does monitor his aggravating factors to limit the onset of pain. He should not be expected to work with his head in prolonged postures away from mid line or neutral, nor should he be expected to work with prolonged periods of right shoulder elevation.”[6]
[6] Report of Mr Greg Dea dated 29 January 2004, PCB 180, 183
21By June 2004, despite some ongoing right shoulder pain and stiffness, Mr Radman had returned to full duties with Telstra. With the approval of Dr Chan, Occupational therapist Kate Ellis certified Mr Radman as having capacity to work full-time hours with restrictions “which would rarely impact on his role.”[7]
[7]Report of Kate Ellis dated 10 June 2024, PCB 192
22Mr Radman had no treatment from that time on, and Telstra closed his file in relation to his compensation claim lodged as an employee under Commonwealth legislation.
23Mr Radman’s evidence is that, while he was able to complete full-time normal duties from June 2004, he used Panadeine Forte or Ibuprofen whenever needed. This is not supported by the clinical records. Ducene, 5 mg half a tablet, was regularly prescribed after June 2004 for anxiety, with no reference to muscle or other neck or shoulder pain.
24There is no record of any complaint to his general practitioner of neck or shoulder pain at all in the period between June 2004 and August 2009. The only explanation proffered by Mr Radman was that in around 2006, he became focused on problems he was having with his right knee.[8]
[8] Plaintiff affidavit sworn 14 October 2021, [24]
25When Mr Radman consulted his general practitioner on 7 August 2009, he was tender at C3-4, with radiation of pain into the right shoulder; but he had a normal full range of motion of the cervical spine, with no neurological symptoms. The clinical note records a history of, “longstanding right sided neck and shoulder pain but in the past 6 weeks since doing a lot of work on the computer has noticed an increase in pain”. Dr Cheng prescribed analgesia.[9]
[9] Defendant’s Court Book (“DCB”) 147
26A CT scan on 13 August 2009 showed:
“chronic right paracentral disc protrusion/osteophytic spur at C5-6. The spur in conjunction with uncovertebral osteophytes produce mild right sided foraminal narrowing. The central canal remains adequate in dimension throughout the range of the study.”[10]
[10] PCB 269-270
27Mr Radman attended Dr Pepic on 24 November 2009, and for the first time gives a history of right sided neck pain since the transport accident:
“c/o of persistent Rt sided neck pain which is radiating to the elbow, mostly af[f]ecting him when using mouse of computer.
all his symptoms started 4 years ago when [h]e had a MCA”[11]
[11] DCB 147
28Dr Pepic referred Mr Radman for more conservative treatment in May 2011.[12] Physiotherapist Paul Silk recorded a history that right sided neck and arm pain symptoms “began around 7 years ago following a motor vehicle accident and have occurred episodically since then, despite conservative treatment.” In his view, “Mr Radman may well have a radicular element to his shoulder and arm pain although the majority of his symptoms would appear to be spondylotic and of a chronic nature.” This finding provides little support for Mr Radman’s application in terms of causation.
[12] Report of Mr Paul Silk dated 11 May 2011, PCB 205
29On 29 January 2013, Mr Radman attended his general practitioner with tension headaches and shoulder pain due to lack of sleep and stress at work. I pause to note there is no earlier record of headaches, apart from a single reference in early 2004 by physiotherapist Mr Dea, taken at the time of initial neck and shoulder symptoms when Mr Radman was unable to work.[13]
[13] PCB 179 and 180
30On 27 April 2015, he attended IPC due to “tension” headaches; and again on 12 December 2016 was complaining of headaches in the context of facial sunburn.[14]
[14] DCB 170 and 181
31Three years later, on 10 May 2018, Dr Pepic recorded a history of severe headaches and chronic neck pain, in the context of being “under a lot of stress, travelling overseas”.[15]
[15] DCB 196
32Noting the TAC’s concession that Mr Radman did mention pain in his neck from time to time,[16] I reject Mr Bracken’s submission that Mr Radman made consistent complaints of neck and shoulder symptoms and consequences since the transport accident in November 2003. There is only sporadic evidence of such complaints between June 2004 and May 2018.
[16] Transcript (“T”) 101, Line (“L”) 18; T102 L19
33Mr Radman made no complaint at all of transport accident-related headaches after January 2004 until he consulted his general practitioner in May 2018 – 14 years after the transport accident.
34Investigations after 2018 comprised:
(a) an x-ray on 21 June 2019 showing reduction in the height of the disc space at C5/C6.[17]
(b) an ultrasound on 21 June 2019 showing mild tendinopathy and subacromial bursitis in his right shoulder. There is also no medical evidence about the link between bursitis in 2019 and the transport accident in 2003;
(c) CT scans of his cervical spine on 11 February 2020 and again on 20 January 2022 recording mild multilevel disc degeneration with mild right C5-6 exit neuroforaminal narrowing.[18]
[17] PCB 271
[18] PCB 274 and 275
35In April 2019, Mr Radman told his treating psychiatrist, Dr Akinsola Akinbiyi,[19] that his headaches “respond to paracetamol”.[20]
[19] In relation to PTSD and severe anxiety secondary to work-related stress
[20] DCB 60
36On 26 November 2019, Dr Pepic referred Mr Radman to neurologist, Dr Victor Chong, who he saw on 29 January 2020. Dr Chong recorded a history as follows:
“…He has had headache since 2003 after “whiplash” injury. His headaches have become more frequent in the last year. The headache is triggered by “thinking too much about work" and a man who “bullied” him.”
37In Dr Chong’s opinion, the headache is caused by medication over-use, noting Mr Radman “is not convinced that he should stop regular painkiller use.”[21]
[21] PCB 225
Other injuries
38Mr Radman also sustained an injury to his right knee in or about May 2006, which has left him with significant loss of function. He underwent right knee arthroscopy performed by Mr Jonathan Hooper on 16 May 2011, with re-section of his meniscus.
Findings as to credit
39Although Mr Ruskin KC was at pains to point out that Mr Radman was not a dishonest witness,[22] he nevertheless submitted that there were difficulties with his evidence, and emphasised that it needed to be considered in the light of other, objective evidence.[23]
[22] T97, 101, 104 and 109
[23] De Agostino v Leatch [2011] VSCA 249 at paragraphs 50 to 51
40Mr Radman’s treating psychiatrist, Dr Akinsola Akinbiyi, recorded that:
“… He appears disorganised and has difficulty following his train of thought. Darko is easily distracted. …”[24]
[24]DDCB 60
41This reflection is consistent with Mr Radman’s presentation in court. His oral evidence was, at times, hard to follow; and, at other times, inconsistent with other available evidence.
42It is not in dispute that Mr Radman suffers from a severe work-related psychiatric condition, which I acknowledge. English is not his first language, and this may also have been a factor at times. Throughout his evidence, Mr Radman was also very focused on his psychiatric condition suffered as a result of his employment with Telstra.
43To the extent Mr Radman’s evidence was inconsistent with the contemporaneous records of his attendances on his general practitioners – in particular in relation to the absence of complaints about his pain over long periods of time or records of medication to treat it – I find this was not deliberate.
44Mr Bracken submitted that the absence of complaint of neck pain in the medical record does not mean it did not occur; it simply means it was not recorded.
45In reflecting on that submission, and even accepting that Mr Radman did have some neck pain, two issues arise. The first is the inherent improbability of Mr Radman suffering from at least “very considerable” neck and/or shoulder symptoms between June 2004 and 2018 when:
(a) he made almost no complaint to his doctor in this period;
(b) he was working full-time, which routinely involved heavy duties; and
(c) he travelled to Europe twelve times.[25]
[25] Exhibit 8
46The second issue is the reliability of Mr Radman’s evidence about his symptoms during this period. Mr Radman was visiting his general practitioner regularly for treatment. Save for the two histories in 2009 and 2011, the clinical notes do not record any complaint to his doctor over a 14-year period. If he was suffering symptoms during this time, this would be very unusual,[26] particularly when the clinical notes and histories referred to above refer to other complaints and medication for unrelated conditions.
[26] Philippiadis v Transport Accident Commission [206] VSCA 1, [106]
47Mr Radman’s oral evidence was inconsistent about his pain levels, which gives me some concern. His affidavit says it was a 2-3/10, which gets significantly worse with certain activities; however, his florid oral evidence was pain in the order of 7-10/10 every day.
48His insistent evidence about the need for prescription medication for his pain is compromised by the lack of supporting evidence in the treating general practitioner’s notes; and the opinion of Dr Chong that he is overusing medication.
49I reject his evidence at paragraph 35 of his first affidavit that, by December 2019, he was taking two Panadeine Forte tablets four times a day, as it is not supported by the records of his general practitioner.
50While his second affidavit deposes to difficulties in his involvement in club soccer, he frankly conceded in cross-examination that the reason he no longer played soccer was his 2006 right knee injury, not his neck.[27]
[27] T 65, L 4-8
51In cross examination, despite his affidavit evidence to the contrary, he admitted he returned to camping a year after the accident.
52The disparity between his affidavit and oral evidence on critical issues means I am unable to afford Mr Radman’s evidence much weight at all.
53There is only limited objective evidence as to injury-related consequences: from his son, Stefan Radman[28] and a co-worker Darren Bishop.[29] Stefan was only 11 years old at the time of the transport accident, and his evidence mainly relates to Mr Radman’s participation in his son’s soccer, and ability to perform domestic tasks. These observations are not by reference to any date, and I accord limited weight to them.
[28] Affidavit sworn 18 April 2024
[29] Affidavit sworn 28 September 2023
54Mr Bishop’s reference to complaints of pain “after the accident” is very general and does not establish the nature or severity of any symptoms, save that they occurred when “undertaking physical activities such as using a pit lid lifter or carrying heavier equipment such as ladders, parts or equipment.” Although it does provide some support for Mr Radman’s claim, it does not assist me in determining the extent any symptoms were disabling.
55I accept the TAC’s submission, that Mr Radman has, in a sense, revised history. He has focused on a pain level with respect to his neck and shoulder over time that is not backed up by the medical material in a consistent way.
56The disintegration of Mr Radman's enjoyment of life was in any event very substantially caused by bullying at work in the years leading up to August 2018 when he ceased working at Telstra.
What injury did Mr Radman sustain at work in the period 2016 to 2018 (including impairment consequences as at the date of the hearing)?
57I will not refer in detail to the psychiatric evidence. Although material was tendered from treating and examining medical doctors, neither party addressed me on this evidence. I proceed on the basis that Mr Radman was, at the date of the hearing, suffering from a severe psychiatric condition, which symptoms included headaches.
58Mr Radman has a longstanding condition of post-traumatic stress disorder and secondary depression from his experiences in the Bosnian War in the 1990s.[30]
[30] See report of Dr Jagadeesh Herur, treating psychiatrist, dated 25 March 2015, at DCB 55
59In the period from in or about 2012 to 2015, Mr Radman’s symptoms had worsened in the context of worsening stressors in his life.
60Mr Radman was then the subject of significant workplace stress and bullying during the period from 2016 to 2018, when he experienced anxiety, distress and worsening headaches. He gave a consistent history of severe headaches from May 2018, and it is not in dispute that his psychiatric condition resulted in him ceasing work on 18 August 2018 in a suicidal state.[31] He has not worked since. In his own words:
“I continue to suffer from significant psychiatric symptoms which interfere with my ability to organise myself and remember appointments. … .”[32]
[31] T51
[32]Affidavit of Mr Radman, sworn 14 October 2021, paragraph [52] at PCB 21
61He continues to receive weekly payments of compensation in relation to his condition of post-traumatic stress disorder and severe anxiety as a consequence of work-related stress.[33]
[33]See reports of treating psychiatrist Dr Dimuthu Hettiarachchi dated 25 August 2016, DCB 57; and Dr Akinbiyi dated 30 April 2019, DCB 60
62Mr Radman has taken prescription medication for many years – before and after the transport accident – to manage his unrelated PTSD symptoms, his difficulty sleeping and headaches. He is receiving ongoing treatment for this condition from his general practitioner and psychologist every two weeks, and his psychiatrist once a month.[34]
[34] T53, L1
63As at the date of the hearing, Mr Radman suffers from a severe and debilitating psychiatric condition of post-traumatic stress disorder and severe anxiety as a consequence of work-related stress, which causes very significant headaches and interruption to his sleep, and incapacity for employment.
What injury did Mr Radman suffer in the transport accident?
64The parties are at odds as to whether Mr Radman suffered a soft tissue injury which resolved within months; or alternatively a persisting aggravation of spondylotic (degenerative) changes in the cervical spine.
65Treating physiotherapist Greg Dea diagnosed Mr Radman’s injury on 29 January 2004 in these terms:
“It appears that Mr Radman has non specific right shoulder girdle, parathoracic and paracervical pain, which appears within the muscle bulk.”[35]
[35] PCB 167
66Dr Edward Schutz, consultant surgeon assessed Mr Radman for medico legal purposes at the request of Telstra on 25 May 2004. His report dated 4 June 2004 included the following findings:
Diagnosis
Muscular discomfort in the web of the neck on the right side.
There is no evidence of abnormality on the X-rays, as he related his understanding of the results to me, and clinically there is no evidence of any other problem.
There still are reported symptoms which appear to be due to a muscular symptom.
However I also consider the symptoms to be relatively minor and muscular only.
Permanency
With a muscular strain there is every likelihood that full recovery will occur.[36]
[36] PCB 198
67Mr Radman relied upon several letters and reports from his treating doctors. All of the relevant opinions are supported by histories of ongoing headaches and pain since the transport accident. None of these histories were contemporaneous; instead they were variously proffered many years after the transport accident:
(a) to Dr Pepic in 2009 (as to neck pain), and in 2018 (as to headaches);
(b) to Mr Silk (2011);
(c) to treating neurologist Dr Victor Chong in 2020 (as to headaches).
68The application is supported by Dr Vesna Pepic, Mr Radman’s longstanding general practitioner, in her reports dated 13 February 2020[37] and 12 October 2020.[38] Dr Pepic stated her opinion as follows:
“Mr Darko Radman is 57 y.o man who [has] unfortunately developed severe anxiety, depression and PTSD second to build up stress at work, what forced him to stop working on 16th of August 2018. Consequently second to mental disorders and use[d] of medications he developed multiple medical conditions which needs ongoing treatment …
Chronic neck pain with Right sided radiculopathy. Mr Darko Radman was involved in MCA and sustained whiplash injury, since than He has been suffering from chronic neck pain and Rt sided radiculopathy. The pain is constant, increased on certain movements, and most painful when using the mouse to work on the computer. The pain is radiating to the head and to the arm, causing severe headaches, right arm pain and also affecting his sleep. There is strong evidence that mental health makes the chronic pain worse…
In my opinion as Mr Darko Radman GP, whom I know past medical history well, all listed medical conditions listed above developed second to severe mental health conditions.”[39]
[37]At PCB 226
[38]At DCB 344
[39] Exhibit 5, report dated 12 October 2020.
69I reject Mr Radman’s evidence that he had ongoing and severe headaches and neck pain since the transport accident. As a result, I give little weight to Dr Pepic’s opinion as to causation in her reports or her letter of referral to Dr Chong dated 26 November 2019.
70I accept Dr Chong’s opinion that Mr Radman’s headache is caused by “medication over-use.”[40]
[40] Exhibit 6; PCB 225
71I also accept the opinion of Dr Pepic that the headaches are secondary to his severe psychiatric condition, which is not inconsistent with views expressed by other doctors that the headaches are tension-related.[41]
[41] Treating GP, Dr Stephanie Tovey(2015): DCB 170
72Medico-legal examiner Mr Ash Moaveni, orthopaedic surgeon expressed his opinion in 2022 that the transport accident significantly aggravated Mr Radman’s underlying degenerative changes in the cervical spine. This opinion is based on an inaccurate history of “intermittent neck pain which has continued to exacerbate since the accident.”[42] His later report in 2023 followed review of an updated medical history, including additional medical reports and the January 2004 x-ray of the cervical spine. I reject Mr Moaveni’s ultimate opinion as to causation as it is based upon his finding that, “Mr Radman had a history of onset of right neck pain and arm pain following a road transport accident in about 2004.”[43]
[42] Report dated 17 February 2022: PCB 241
[43] PCB 254
73I had the benefit of oral evidence from Mr Radman. Unlike Mr Moaveni, I also had the benefit of all of the evidence, including Mr Radman’s recounting the heavy nature of his work duties, which he was able to perform in an unrestricted manner for 14 years after the transport accident. Mr Moaveni has not addressed this in his report, or the absence of complaints of symptoms over this period.
74Dr Patrick Lo, treating neurosurgeon, examined Mr Radman on a single occasion in 2022. His report is only two paragraphs, and does not alter my views. Dr Lo does not set out the basis of his opinion that there has been an aggravation, exacerbation and acceleration of the degenerative spinal condition. The opinion carries little if any weight. His history that “since [the transport accident] he has had increasing neck pain”[44] is not supported by my findings.
[44] PCB 256
75Nor do the medico-legal opinions of Dr David Freilich of 28 February 2023 and 18 July 2023 take things very far either. In Dr Freilich’s opinion:
“in the motor car accident which occurred on 7.11.03 Mr Radman sustained a flexion-extension injury to the cervical spine. Imaging of the cervical spine, the report of which I have seen, showed changes at C5/6 with foraminal narrowing at that level. It is likely that the injury aggravated underlying cervical spondylosis which was already present and this has resulted in ongoing symptoms.”[45]
[45] PCB 259
76The “ongoing symptoms” which underpin this view are set out in his 2023 report:
“He continued working. He had headache, neck and right shoulder pain. He worked in the office and also in the field. He found it difficult to work in pits.
Over time the pain gradually worsened.
…
Following the accident he experienced neck pain, headache and right shoulder pain and those symptoms have continued.”
77There is no evidence of spinal injury in 2004, or of degenerative changes until the scan in August 2009, nearly 6 years after the transport accident. I have rejected Mr Radman’s evidence of ongoing worsening neck and shoulder pain during this period.
78On the evidence as a whole, I am not satisfied as to the following:
(a) Mr Radman experienced any significant symptoms in his neck and shoulder, including headaches, during the period from June 2004 to May 2018; and
(b) his headaches are related to his neck and shoulder injury.
79Ultimately, I accept the opinions of Mr Speck, Mr Dea and Dr Shutz that Mr Radman suffered soft tissue injuries in the transport accident which had resolved by in or about June 2004. His present condition relates to underlying constitutional change. On the balance of probabilities, Mr Radman has not satisfied me that he has a compensable injury.
What transport accident related injury(ies) persist as at the date of the hearing?
80For the reasons set out above as to the soft tissue injury sustained by Mr Radman in the transport accident, which has resolved, I am not satisfied Mr Radman has any persisting compensable injury to the cervical spine or the right shoulder.
What are the impairment consequences of any ongoing compensable injury?
81On the basis of my findings above, there is no ongoing compensable injury.
Are the impairment consequences[46] at least “very considerable”?
[46] At paragraphs 53 to 60 of the first affidavit; and paragraphs 4, 5, 9 and 10-14 in the second affidavit
82Even if Mr Radman has a persisting compensable injury, I find that the consequences of his neck and/or right shoulder condition would not satisfy the narrative test.
83Mr Radman principally relied on the consequences of pain, loss of sleep and loss of amenity of life.
84While I accept Mr Radman presently has some ongoing pain in his neck and right shoulder, with occasional radiation into his arm resulting in some restriction of use, this alone or in combination with other consequences is not sufficient to satisfy the narrative test.
85Mr Radman worked full-time until his psychiatric injury in August 2018.[47] Although not determinative, this tends against a finding of serious injury.
[47] See Sumbull v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, at [24]
86His biggest problem currently is with his sleep,[48] however his sleep difficulties relate predominantly to his psychiatric condition. His sleep disruption, at best, only partly relates to neck and right shoulder pain, and the evidence does not permit me to make a finding as to any discrete sleep difficulties relating to the claimed injury.
[48]Serious injury affidavit, sworn 14 October 2021, paragraph [56] at PCB 22
87Although prescription Ducene may have had some positive effect on his pain over the years, particularly his tension-related headaches, I reject Mr Radman’s evidence that he was prescribed Ducene for his physical injuries. His evidence is thoroughly inconsistent with the clinical records.
88There is no evidence that the spinal surgery is indicated. On the balance of probabilities, I find that the possibility of surgery is not a consequence Mr Radman may rely upon in support of his application.
89Although holidays using the family caravan have ceased, Mr Radman’s oral evidence was that he had not used his caravan since he ceased work in 2018.[49]
[49] T 65
90I accept that Mr Radman may have difficulty manoeuvring a caravan or a boat, and casting during occasional fishing, due to his neck condition. These consequences are no doubt significant to him, but they fall somewhat short of the “very considerable” test.
91I place particular weight on Mr Radman’s ability to work without any reported symptoms or treatment, performing normal duties for a period of fourteen years between his return to work in June 2004 and up to and including the date he ceased employment in August 2018.[50]
[50]See Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24]
Conclusion
92For the reasons set out above, I find that Mr Radman does not have a persisting compensable injury. Accordingly, leave to commence proceedings is refused.
93In the alternative, I find that the consequences of any neck and/or right shoulder to Mr Radman, although “significant”, are not “very considerable” and, accordingly, his application is refused on this basis also.
94There is no utility in determining the application under s23A of the Limitation of Actions Act 1958 to extend the time within which to commence proceedings in these circumstances.[51]
[51] Giakalis
95I shall hear the parties on final orders and as to costs.
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